Pradeep vs State
2012 Latest Caselaw 2296 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

                      DATE OF DECISION: APRIL 10, 2012

+       CRL.REV.P. 136/2012 and Crl.M.A.No.3290/2012

        PRADEEP                             ..... Petitioner
                            Through: Mr.Pawan Sharma, Advocate.

                     versus

        STATE                                  ..... Respondent

Through: Mr.Navin Sharma, APP.

CORAM:

HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J (ORAL) %

1. The petitioner has impugned the order dated 18.01.2012 vide which the application filed by the petitioner under Section 311 Cr.P.C. seeking recall of PW-4 Harbir was dismissed.

2. Mr.Pawan Sharma, learned counsel for the petitioner submits that PW-4 Harbir who is injured and a star witness was examined on 04.02.2008 and thereafter on 12.09.2008. He filed an application dated 12.01.2011 seeking recall of PW-4 for his cross-examination which was dismissed by the learned Addl. Sessions Judge vide order dated 23.02.2011. The said order was challenged by the petitioner before this Court by filing a revision petition, but the said petition was dismissed as withdrawn on 19.09.2011 with liberty to the petitioner to file a fresh one. Thereafter, the petitioner filed another application seeking recall of the said PW-4 which

was dismissed by the learned Addl. Sessions Judge vide order dated 18.01.2012, observing that the Court cannot permit use of the provision under Section 311 Cr.P.C. to fill up the lacuna and that similar prayer has already been declined by the Court which was unsuccessfully challenged before the High Court.

3. Learned counsel for the petitioner submitted that the Court has ample power to summon any person as a witness at any stage or recall or re-examine any person already examined for the just decision of the case. It has been submitted that the learned Trial Court wrongly observed that the purpose to recall PW-4 was to fill up lacuna in the case. Counsel further contended that the learned Trial Court failed to appreciate that certain questions were required to put to PW-4 and in view of the serious nature of the offence, ample opportunity is required to be given to the petitioner to prove his innocence. Learned counsel further submitted that the previous counsel had not properly conducted cross- examination of PW-4 for the reasons best known to him only, as he has not put relevant and proper questions to the witness which were/are necessary and just for proper adjudication of the matter. In fact, there are certain questions which ought to have been put to the witness which are/were relevant and just for proper disposal and adjudication of the matter, but the same have been left out and could not be put to the witness. In support of his submissions, learned counsel for the petitioner has relied upon the following judgments:-

(1) Mohan Lal Shamji Soni vs. Union of India and Anr.

Crl.Appeals No.4 & 5 of 1979.

(2) 1997(2) Crimes 634 Heera Lal vs. State of M.P.

4. In Mohan Lal Shamji Soni vs. Union of India and Anr. Crl.Appeals No.4 & 5 of 1979 relied upon by counsel for the petitioner in support of his contention, after examination of the prosecution witnesses, recording of statement of the appellants as well as examination of defence witnesses, at the stage of arguments, before commencing arguments, the prosecution filed two applications for recalling Seizing Officer for further examination and to issue summons to two more witnesses for examining them either as prosecution witness or as a court witness as contemplated under the said provision which was rejected by the learned Judicial Magistrate and the order rejecting the application was confirmed by the Sessions Judge. However, the High Court while criticising the conduct of the prosecution for its deplorable and lethargic attitude in not carefully and promptly conducting the proceedings allowed all the Criminal Revisions. The said order was confirmed by the Apex Court.

5. The other case cited by counsel for the petitioner is 1997(2) Crimes 634 Heera Lal vs. State of M.P. wherein the fact situation as disclosed in the petition was that one R.N.Singh, Assistant Sub Inspector posted at the relevant time at Ghansour, was not examined by the prosecution, whose examination was considered to be relevant and essential for unfolding the truth. The said application was dismissed by the learned Trial Judge on the ground that the prosecution had already closed its evidence

and did not intend to examine these witness as main witnesses have been examined. It was in these circumstances that in para-5 of the said judgment it was observed as under:-

5. To appreciate the rival contentions raised at the bar, I have perused the impugned order. Needless to emphasize, it is absolutely a cryptic order. The reasons given by the Court below relate only to the closer of the prosecution case. There is no discussion with regard to any other aspect. The prosecution had also not filed any objection indicating its stand. The validity of this order is to be tested keeping the language employed under Section 311 of the Code. It is essential to refer to the provision under Section 311 of Cr.P.C. which reads as under:-

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 witness, or examine any person in attendance, though not summoned as a witness, or re-call or re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence to appears to be essential to the just decision of the case".

From the aforesaid provision it is crystal clear that the Court has been empowered to summon any person as a witness at any stage of any inquiry, trial or other proceeding. The power is not confined to any particular class of person. The wide power has been conferred to further the ends of justice. The Court keeps its minds open to perceive the desirability of any evidence being brought on record for just decision of the case. It is a cardinal principle in the law of evidence that the best available evidence should be brought before the Court. If it appears to the Court that evidence of a particular witness is essential for the just decision of the case, statute casts the mandate of the Court to summon him. Where the evidence of any person which in the opinion of the Court is essential for a just decision of the case the Court has authority to exercise its discretionary power in any of the three ways, mentioned in the first part of the section. It is

settled in law if the conditions under this provision are satisfied the Court can call a witness not only on the motion of either the prosecution or the defence, but it can do so on its own motion. The Apex Court in the case Mohanlal Shamji Soni v. Union of India and others while dealing with the jurisdiction of the Court u/s 311 of the Code has laid down as follows:-

"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. It is the duty of the Court not only to do justice but also to ensure that justice is being done. In order to enable a 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 inquiry, 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 other 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. The very usage of the words such as „any Court‟ „at any stage‟, or „any enquiry‟, trial or other proceedings‟, „any persons‟ 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 law. However, the vary 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 in the fresh evidence to be obtained is essential to the just decision of the case."

6. In the instant case, it is not the case of the petitioner that he wants to examine a witness who was cited but not examined by the prosecution. It is also not the case of the prosecution that when PW-4 was examined by the prosecution, his counsel declined to cross-examine that witness despite inculpatory statement made by him or that due to inaction on the part of his previous counsel the witness was discharged without effective cross-examination.

PW-4 had appeared on two dates and was effectively cross- examined by the previous counsel of the petitioner on two dates. The cross-examination of this witness runs into more than four pages. This witness was cross-examined by Mr.S.S.Tyagi, Advocate and Mr.Manu Sharma, Advocate, counsel for both the accused persons. Merely because certain questions/suggestions could not be put to the witness by the previous counsel, in itself will not entitle the petitioner to recall the witness for his further cross- examination just because the another counsel engaged by the petitioner felt certain lacunae being left during the cross- examination of the material witness.

7. When an application is filed under Section 311 Cr.P.C. the Court has to satisfy itself with the reasons assigned for recalling the witness. It is relevant to note here that PW-4 Harbir to whom the petitioner wants to recall for further cross-examination was examined long back and the first application to recall him was moved on 12.01.2011. The

order rejecting the application was unsuccessfully challenged before this Court and after withdrawing the petition filed before this Court. The second application was moved with the same prayer. The fact that the first application under Section 311 Cr.P.C. was filed after a long gap from the date of the examination of PW-4 by itself points out that in the guise of application under Section 311 Cr.P.C. the petitioner had been trying to fill up the lacunae which is not permissible in law. This Court cannot permit such an exercise. The discretion vested in the trial court has been exercised by the learned Addl. Sessions Judge in a judicious manner. Situation would have been different had the petitioner remained unrepresented during the period when PW-4 was examined by the prosecution.

8. Finding no illegality in the impugned order, I am of the view that the instant petition is meritless and the same is hereby dismissed with no order as to costs.

PRATIBHA RANI (JUDGE)

APRIL 10, 2012 „dc‟