Surender @ Kalwa vs State (Govt. Of Nct Of Delhi)
2012 Latest Caselaw 3450 Del

*                THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL.REV.P. 162/2012


                                            Date of Decision: 23.5.2012


SURENDER @ KALWA                                      ...... Petitioner
               Through:                Mr.Anurag Jain, Advocate &
                                       Mr.K.P.Singh, Advocate.


                                 Versus



STATE (GOVT. OF NCT OF DELHI)         ...... Respondents
                  Through: Mr.M.N.Dudeja, APP.


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This revision petition under Section 397/401 read with Section 482 CrPC assails the order dated 12.3.2012 of ASJ whereby the application under Section 311 CrPC of the prosecution was allowed.

2. The petitioner along with co-accused is facing prosecution in FIR No. 119/2004, P.S. Rohini, under Sections 394/397/302/411/34 IPC. The prosecution having already examined its witnesses and the statement of the petitioner as an accused having also been recorded under Section 313 CrPC, and the defence evidence also having been

already led, the prosecution case was at the stage of final arguments when the application under Section 311 CrPC was moved by prosecution for summoning of M.S. Jatav as its witness. The said application was allowed by the learned ASJ vide the impugned order dated 12.3.2012.

3. The impugned order has been assailed by the petitioner on the ground viz. M.S.Jatav was not a cited witness of the prosecution, he was never examined under Section 161 CrPC and was not even joined in the investigation. It was submitted that the incident was of the year 2004 and the application under reference was filed by the prosecution after a lapse of eight years in 2012 and the examination of M.S.Jatav at this stage was to cause prejudice to the petitioner since he had already disclosed all his defence. It was submitted that no explanation has been given for delay in examining M.S. Jatav as a prosecution witness.

4. I have heard learned counsel for the petitioner and the learned APP and perused the records.

5. There is no dispute that the application under reference has been filed at a very belated stage, when not only the case of the prosecution; has been closed but, the petitioner has also led his defence and the case was at the stage of final arguments. It is however, undisputed legal proposition that if the case falls within the ambit of provision of Section 311 CrPC, then, the delay alone would not come in the way of

administration of justice. Section 311 CrPC empowers the court to summon or examine the material witness at any stage of enquiry trial or other proceedings. The Section reads thus:

"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".

5. The interpretation and applicability of this Section has come up before this court on several occasions. The Section is intended to give wide and amplitude powers to the court and is manifested in two parts. In the first part the word used is "may", whereas in the second part the word used is "shall". While the first part gives the discretionary powers, the second part makes it mandatory and obligatory upon the court to act in any of the three ways mentioned in the first namely (i) to summon any person as a witness (ii) examine any person present in the court although not summoned and (iii) recall and reexamine a witness already examined. For invoking the power under second part, the court is necessarily to form an opinion that doing of any three acts is essential for the just decision of case. In other words, where it appears to the court that summoning, examining and recalling/reexamining any person is essential to the just decision of the case, the court is under an obligation and compulsion, bound by its duty, to summon or examine such person. This part of section confers the widest possible powers on

the court, without any limitation, either with regard to the stage at which the powers of the court is to be exercised or with regard to the manner in which it should be exercised. It is the duty of the court to examine such of those witnesses as it considers absolutely necessary for doing justice. The power under second part can be exercised by the court either on its own or at the instance of any of the parties, may be the accused, or the prosecution. In the case of Iddar & Ors. Vs. Aabida & Anr., AIR 2007 SC 3029, the Supreme Court observed thus:

"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 for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under Code and empowers 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".

6. While this Section confers unlimited discretion upon the court to summon any witness at any stage of the trial or proceedings, it has its inherent limitations on the discretion to be exercised only for the just decision of the case, which would simply imply the same to be exercised judiciously and not otherwise.

7. Having noted above the mandate of the provision of Section 311 CrPC, though M.S.Jatav was neither cited as prosecution witness, nor joined in the investigation, but it has come in the testimony of

complainant (PW1) that M.S.Jatav was his boss at the relevant time when he was posted at Mathura. In his statement under Section 161 CrPC also, PW1 had stated that he had received the information by phone that some incident had happened in Delhi at his house and he was required to reach at his house at the earliest. Though the name of M.S.Jatav did not appear in the deposition of the PW1 on that aspect, but PW1 is seen to have been cross examined in this regard. An unnecessary issue was sought to be made by the learned counsel for the petitioner that from the response to the RTI application, it has been known that there was no telephone at the work place of PW1 at Mathura and that PW1 remained on duty and did not leave his office for making phone call to his wife from 6.00 a.m. to 10.00 p.m. on 5.2.2004 and thus, he had no opportunity or occasion to call his wife. This, to my mind, was not at all relevant or material for the purpose of assessing as to whether the examination of M.S.Jatav was essential for the just decision of case.

8. PW1 had stated that on 5.2.2004 at noon time, he made a phone call to his wife from Mathura and she told him that the petitioner and other co-accused persons had come to the house and she was cooking meal. However, when he again tried to contact her on telephone, no one responded. He stated that at about 10.45 p.m., his boss telephoned him that some mishappening had happened at his house at Delhi and then he boarded the bus for Delhi at about 3.30 a.m. PW1 was cross examined on this aspect and he maintained the name of his boss as M.S.Jatav. In

view of the statement of PW1 that his boss M.S.Jatav informed him of mishappening of something at Delhi and his thereafter rushing to Delhi was certainly an important and relevant fact for the just decision of the case. I do not understand as to how the petitioner would be prejudiced by examination of M.S.Jatav, since in all fairness, he would get an opportunity to test his veracity by cross examining him. Since PW1 has already been cross examined as regard to M.S.Jatav, there would not be any further necessity of subjecting PW1 to further cross examination. It is also not understandable as to how the defence of the petitioner would be prejudiced inasmuch none of the defence witnesses would have any bearing or relevance with the deposition of M.S.Jatav. The DW2 is an official witness, who has proved certain documents, whereas defence witnesses DW1, DW3 and DW4 have only deposed about the circumstances leading to the arrest of the accused or they have tried to prove the plea of the alibi of the accused.

9. The learned ASJ, who was the Trial Judge has examined the testimonies of PW1 as also the defence witnesses and has formed a considered opinion that though it was belated, but the examination of M.S.Jatav was essential for the just decision of the case and it was not to cause of any prejudice to the defence or otherwise to the petitioner. I do not find any infirmity or illegality in the impugned order of the ASJ, which has been rendered in the interest of justice.

10. Keeping in view all this and having regard to the entire factual matrix, the petition is devoid of any merit and is hereby dismissed.

M.L. MEHTA, J.

MAY 23, 2012/akb