Chand Patrakar And Another vs State Of U.P. And Another
2021 Latest Caselaw 11434 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 89								        [A.F.R.]
 

 
Case :- CRIMINAL REVISION No. - 3280 of 2021
 

 
Revisionist :- Chand Patrakar And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Ajay Kumar Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Ajay Kumar Mishra, learned counsel for the revisionist as well as Sri L.D. Rajbhar, who appears for the opposite party no.1.

2. This is a revision under Section 397/401 of the Cr.P.C. challenging the order dated 13.10.2021 passed by Special Judge (P.C.Act) Court No.2/Additional Sessions Judge, Bareilly in Special Case No. 3 of 2018 arising out of Case Crime No.154 of 2016 under Section 8/9 Prevention of Corruption Act (State Vs Chand Patrakar and another), P.S. Hasanpur, District Amroha by which the court below has rejected the application preferred by the revisionist under Section 311 of the Cr.P.C.

3. Briefly stated facts are that an FIR was lodged by the opposite party no.2 against the revisionists, who are two in numbers, on 10.4.2016 before the P.S. Hasanpur, District Amroha being Case Crime No.154 of 2016 with an allegation that against the opposite party no.2 and their relatives, a case relating to dowry was lodged and which was under investigation by C.O. Hasanpur and about 7 to 8 days prior to the lodging of the present FIR one Latif (Milkman) had recommended the name of the revisionist and a meeting also arranged with them wherein the issue with regard to the expunging the name of the opposite party no.2 and her daughters was discussed in lieu of payment of certain amounts. A demand of Rs.1,00,000/- was raised by the revisionist and the opposite party no.2 thereafter pledged her jewellery and paid an amount of Rs.30,000/- to the revisionist and an amount of Rs.70,000/- was balance which was to be paid subsequently. However, the proceedings went against the opposite party no.2 and her family despite the fact according to the opposite party no.2, she had made the payment for expunging away her name from the criminal proceedings as nothing was done by the revisionist, so above noted FIR was lodged.

4. The investigation was conducted by the Investigating Officer and charge sheet was submitted against the revisionist on 5.5.2016 in Case Crime No.154 of 2016, 8/9 of the Prevention of Corruption Act reference whereof has been given in para-4 of the application.

5. It appears that the statement of the PW1 Atarkali (opposite party no.2) was recorded on 19.4.2018 itself and thereafter the statements of PW2 to PW7 have also been recorded. The revisionists as per own showing have annexed annexure-3 at page 40 of the paper book an application purported to be under Section 311 of the Cr.P.C. for recalling and re-examine of PW1 (O.P. No.2) The said application has now been rejected while passing the order dated 13.10.2021 which is under challenge. \

6. Before the proceeding further it is apt to quote the provisions contained in Section 311 of the Cr.P.C:

"311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."

7. A plain reading of Section 311 of the Cr.P.C. itself shows that any court may, at any stage of any inquiry, trial or other proceedings under said Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness, recall and reexamine any person already examined and the court shall summon, examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

8. The legislature was quiet conscious about the employment of the word "at any stage of any inquiry", "trial or other proceedings under this Code" as well as "if his evidence appears to it to be essential to the just decision of the case."

9. Section 311 of the Code of Criminal Procedure, 1973 is the incarnation of the provisions contained under Section 540 under Chapter XLVI of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code).

10. Section 540 of the Old Code is being quoted hereinunder:

"540 Power to summon material witness, or examine person present. - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."

11. The provisions contained under Section 540 of the Old Code was subject matter of consideration in the case of Jamatraj Kewalji Govani Vs. State of Maharashtra, reported in AIR 1968 SC 178. The Hon'ble Apex Court in paragraph-10 of the said case has held as under:-

"10. Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways : (a) summon any person as a witness,

(b) examine any person present in court although not sum- moned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution."

12. In the case of Mohanlal Shamji Soni Vs. Union of India and another, reported in 1991 Supp (1) SCC 271, the Hon'ble Apex Court in paragraphs 7, 9, 10 and 27 has observed as under:

"7. Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading 'Miscellaneous'. But the present corresponding Section 311 of the new Code is found among other Sections in Chapter XXIV under the heading 'General Provisions as to Enquiries and Trials'. Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words 'to be' before the word "essential" occurring in the old Section. This section is manifestly in two parts. Whereas the word 'used' in the first part is 'may' the word used in the second part is 'shall'. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it at any stage of enquiry, trial or other proceedings' under the Code to act in one of the three ways, namely, (1) to summon any person as a witness or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined.

9. The very usage of the words such as 'any court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.

10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties with-holds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the New Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate,, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case.

13. In the case of Zahira Habibulla H. Sheikh and another Vs. State of Gujarat and others, reported in (2004)4 SCC 158, the Hon'ble Apex Court in paragraphs- 43 and 46 has observed as under: -

"43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness."

"46. Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by Courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in the case."

14. In the case of U.T. of Dadra & Haveli & another Vs. Fatehsinh Mohansinh Chauhan, in Appeal (Crl.) No. 834 of 2006, decided on 14.8.2006, the Hon'ble Supreme Court had in paragraph observed as under:

"12. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the Court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in prosecution case" unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused resulting in miscarriage of justice."

15. In the case of Vijay Kumar vs. State of U.P. and another, reported in 2011 (8) SCC 136, the provisions contained under Section 311 of the Code of Criminal Procedure was considered and the Hon'ble Court in paragraphs-14 and 17 has held as under: -

"14. There is no manner of doubt that the power under Section 311 of Code of Criminal Procedure is a vast one. This power can be exercised at any stage of the trial. Such a power should be exercised provided the evidence which may be tendered by a witness is germane to the issue involved, or if proper evidence is not adduced or relevant material is not brought on record due to any inadvertence. It hardly needs to be emphasized that power under Section 311 should be exercised for the just decision of the case. The wide discretion conferred on the court to summon a witness must be exercised judicially, as wider the power, the greater is the necessity for application of the judicial mind. Whether to exercise the power or not would largely depend upon the facts and circumstances of each case. As is provided in the Section, power to summon any person as a witness can be exercised if the court forms an opinion that the examination of such a witness is essential for just decision of the case.

17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said Section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the Court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt. Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."

16. In the case of P. Sanjeeva Rao Vs. State of Andhra Pradesh, reported in 2012(7) SCC 56, the Hon'ble Apex Court has observed as under:

"19. The nature and extent of the power vested in the Courts under Section 311 Cr.P.C. to recall witnesses was examined by this Court in Hanuman Ram v. The State of Rajasthan & Ors. (2008) 15 SCC 652. This Court held that the object underlying Section 311 was to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of the witnesses. This Court observed:

"7. ... ''26. ... This is a supplementary provision enabling, and in certain circumstances imposing on the Court, the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.

27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind." (emphasis supplied)

20. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC 430. The following passage is in this regard apposite:

"In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible." (emphasis supplied)

21. The extent and the scope of the power of the Court to recall witnesses was examined by this Court in Mohanlal Shamji Soni v. Union of India & Anr. 1991 Supp (1) 271, where this Court observed:

"27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case." (emphasis supplied)

22. Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs. 2012 (3) SCALE 550. A timely reminder of that solemn duty was given, in the following words:

"What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice."

23. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself."

17. In the matter of Natasha Singh Vs. CBI, reported in 2013(5) SCC 741, the Hon'ble Apex Court after analyzing the law relating to Section 311 of the CrPC in paragraphs- 20, 21 and 22 has observed as under: -

"20. Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case.

21. The High Court has simply quoted relevant paragraphs from the judgment of the Trial Court and has approved the same without giving proper reasons, merely observing that the additional evidence sought to be brought on record was not essential for the purpose of arriving at a just decision. Furthermore, the same is not a case where if the application filed by the appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine said three witnesses.

22. In view of above, the appeal succeeds and is allowed. The judgment and order of the Trial Court, as well as of the High Court impugned before us, are set aside. The application under Section 311 Cr.P.C. filed by the appellant is allowed. The parties are directed to appear before the learned Trial Court on the 17th of May, 2013, and the learned Trial Court is requested to fix a date on which the appellant shall produce the three witnesses, and the same may thereafter be examined expeditiously in accordance with law, and without causing any further delay. Needless to say that the prosecution will be entitled to cross examine them."

18. Further in the matter of Rajaram Prasad Yadav vs. State of Bihar and another, reported in 2013(14) SCC 461, the Hon'ble Supreme Court had considered the provisions contained under Section 311 and has held in paragraph-14 as under:

A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution."

19. In the matter of Mannan Shaikh and others vs. State of West Bengal and another, reported in (2014) 13 SCC 59, the Hon'ble Apex Court had the occasion to further consider the provision contained under Section 311 of CrPC and in paragraphs-12, 16 and 17, has observed as under: -

"12. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word ''shall'. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words ''essential to the just decision of the case' are the key words. The court must form an opinion that for the just decision of the case recall or re- examination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine.

16. If we view the present case in light of the above judgments, we will have to sustain the High Court's order. PW15-SI Dayal Mukherjee stated in the court that he had recorded the statement of deceased Rupchand Sk. Thus, this fact was known to the defence. He was cross-examined by the defence. Inadvertently, the said statement was not brought on record through PW15-SI Dayal Mukherjee. Rupchand Sk died after the said statement was recorded. The said statement, therefore, became very vital to the prosecution. It is obvious that the prosecution wants to treat it as a dying declaration. Undoubtedly, therefore, it is an essential material to the just decision of the case. Though, the fact of the recording of this statement is deposed to by PW15-SI Dayal Mukherjee, since due to oversight it was not brought on record, application was made under Section 311 of the Code praying for recall of PW15-SI Dayal Mukherjee. This cannot be termed as an inherent weakness or a latent wedge in the matrix of the prosecution case. No material is tried to be brought on record surreptitiously to fill-up the lacuna. Since the accused knew that such a statement was recorded by PW15-SI Dayal Mukherjee, no prejudice can be said to have been caused to the accused, who will undoubtedly get a chance to cross-examine PW15-SI Dayal Mukherjee.

17. It is true that PW15-SI Dayal Mukherjee was once recalled but that does not matter. It does not prevent his further recall. Section 311 of the Code does not put any such limitation on the court. He can still be recalled if his evidence appears to the court to be essential to the just decision of the case. In this connection we must revisit Rajendra Prasad where this Court has clarified that the court can exercise power of re- summoning any witness even if it has exercised the said power earlier. Relevant observations of this Court run as under:

"We cannot therefore accept the contention of the appellant as a legal proposition that the court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The steps which the trial court permitted in this case for resummoning certain witnesses cannot therefore be spurned down or frowned at."

20. In the case of State (NCT of Delhi) Vs. Shiv Kumar Yadav, reported in 2016(2) SCC 402, the Hon'ble Apex Court in paragraph-27 has held as under:-

"It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power under Section 311 Cr.P.C. is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined."

21. In the matter of Ratan Lal Vs. Prahlad Jat and others reported in (2017) 9 SCC 340, the Hon'ble Apex Court in paragraph-17 has observed as under: -

"In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order."

22. Yet in the case of Swapan Kumar Chatterjee vs. Central Bureau of Investigation, reported in 2019 (14) SCC 328, the Hon'ble Apex Court in paragraphs-11 and 12 has observed as under: -

"11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this Section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.

12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier is not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision."

23. From the proposition of law culled out in the aforesaid judgments an inescapable conclusion comes in light that the powers under Section 311 of the CrPC can only be invoked by the Court just in order meet the ends of justice for strong and valid reason and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and therefore, the ground of fair and proper opportunity to the persons concerned may be ensured being a constitutional goal as well as the human rights.

24. Now, in the light of the aforesaid principles of law culled down by the Hon'ble Apex Court, the present case is to be decided.

25. Learned counsel for the revisionist has argued that it was a fit case wherein the application so preferred by the revisionist under Section 311 of the Cr.P.C. ought to have been allowed as the facts of the case necessitated for the same.

26. Countering the said submission, learned AGA, who appears for the State, has argued that from the perusal of the application under Section 311 of the Cr.P.C. preferred by the revisionist dated 30.10.2021 itself shows that the same was only with the purpose to linger on the proceedings as it is very vague and does not even disclose any solid reasons for filing of the same.

27. I have perused the order dated 30.10.2021 passed by the court below under challenge and I find that in the application so preferred by the revisionist under Section 311 of the Cr.P.C. for re-examination of the PW1 (O.P.2) has been filed with on following grounds:-

(a) Certain important facts could not be asked from the PW1.

(b) The facts were necessary for adjudication of the criminal case in question.

28. This Court finds that the aforesaid grounds so taken in the application under Section 311 of the Cr.P.C. or not only vague but they do not disclose any of the conditions which are necessary for recalling the witness. Merely on asking the application under Section 311 of the Cr.P.C. cannot be allowed as there has to be sufficient reasons behind it.

29. Needless to point out that though the application under Section 311 of the Cr.P.C. can be allowed at any stage namely at the stage of inquiry, trial or other proceedings as contemplated under the Code of Criminal Procedure, 1973, however, the same is always subject to the valid grounds and reasons necessitating for allowing the same.

30. The application so preferred by the revisionist also does not give any specific details as to what are the questions which are to be raised in the cross-examination of PW-1 as only bald and vague assertion has been made that certain questions relating to the occurrence of the incident were left to be asked. In the absence of any pleadings set-forth by the revisionist before the court below seeking re-examination / recall of the witness as well as canvasing of any argument to show that the order under challenge is illegal, perverse and palpably unjust, this Court cannot interfere.

31. Accordingly, this Court is of the firm opinion that the order passed by the court below does not suffer from any manifest illegality in exercise of revisional jurisdiction. This court cannot also substitute its own view, once another view is possible, that too when there is nothing on record to show that the view taken by the court below suffers from manifest error or is palpably illegal.

32. Resultantly, the present revision is wholly misconceived and is liable to be dismissed.

33. Accordingly, the revision is dismissed.

34. Cost made easy.

Order Date :- 6.12.2021

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