Delhi High Court
Ashok Kumar vs The State (Govt. Of Nct Of Delhi) on 8 March, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 8th March, 2013
+ CRL. M.C. 987/2013
ASHOK KUMAR ..... Petitioner
Through: Mr. Sunil Ahuja, Adv.
versus
THE STATE (GOVT. OF NCT OF DELHI) ...... Respondent
Through: Ms. Rajdipa Behura, APP for the State.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CRL MA 3059/2013 (Exemption)
Exemption allowed, subject to all just exceptions.
The Application is allowed
CRL. M.C. 987/2013
1. The Petitioner invokes the inherent powers of this Court under Section
482 of the Code of Criminal Procedure (the Code) and seeks opportunity
to recall PW-4 Dr. P.C. Prabhakar for further cross-examination.
2. The ground taken up by the Petitioner for recalling PW-4 is that there are
discrepancies in the testimonies of PW-4 and PW-13 viz. PW-4 examined
the prosecutrix and observed bruises and scratches around the neck and
front of chest, small abrasions over lower lip whereas PW-13 (IO) in his
cross-examination stated that he did not observe any external injury on
the person of the prosecutrix.
3. The learned Additional Sessions Judge ('ASJ') dismissed the application
under Section 311 of the Code on the premise that PW-4 Dr. P.C.
Prabhakar was cross examined at length on 17.10.2012. Simply because
there were contradictions in the testimony of two witnesses, it was not
permissible to recall PW-4 for the purpose of cross-examination.
4. The inherent powers under Section 482 of the Code have been conferred
on the High Court to use such powers as may be necessary (i) to give
effect to an order under the Code; (ii) to prevent abuse of the process of
the Court; and (iii) otherwise to secure the ends of justice. It is well
settled that the inherent powers under Section 482 of the Code have to be
exercised sparingly, carefully and with caution and not as a matter of
routine.
5. Section 311 of the Code confers wide powers on every Court to examine,
recall, re-examine any person already examined for just decision of the
case. This Section is devisible in two parts. In the first part discretion is
given to the Court and enables it at any stage of an inquiry, trial or other
proceedings under the Code, (a) to summon anyone as a witness, or (b) to
examine any person in the Court, or (c) to recall and re-examine any
person whose evidence has already been recorded. On the other hand, the
second part appears to be mandatory and requires the Court to take any of
the steps mentioned above if the new evidence appears essential to it for
the just decision of the case.
6. Section 311 is couched in the widest possible terms but the powers have
to be invoked only with the object of discovering relevant facts or
obtaining proper proof of such facts and for just decision of the case. The
unbridled exercise of the power may lead to undesirable results.
Therefore, the Court is under obligation to take due care and caution
while exercising these powers. In Mohanlal Shamji Soni v. Union of
India & Anr., 1991 Supp (1) SCC 271, the Supreme Court dealt with the
scope and the purpose of conferring powers under Section 311 of the
Code. In Paras 9 and 10 it observed as under:-
"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 withholds 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?
......."
7. Thus, the main purpose behind conferring this power is to do justice
between the parties irrespective of the fact whether any party produces
any evidence within its power and position. Similarly, the power to recall,
re-examine the witnesses already examined has also been conferred with
that very object in view.
8. In the instance case, PW-4 Dr. P.C. Prabhakar was examined on
17.10.2012. He was cross-examined on that very day, without any demur
by the defence. From the examination-in-chief as well as the MLC
Ex.PW-4/A it can be seen that the doctor did notice some injuries on the
person of the prosecutrix. The Petitioner was at liberty to challenge the
doctor's testimony by putting appropriate questions in cross-examination.
The effect of the contradictions, if any is to be analyzed by the Court at
the final stage. The learned ASJ, in the circumstances, declined to recall
PW-4 for the purpose of further cross-examination.
9. Although, the Court has very wide powers under Section 311 of the Code
yet, as stated above, the powers have to be exercised to recall any witness
only when a specified justification is shown for recalling the witness.
The learned ASJ rightly exercised his discretion in dismissing the
application under Section 311 of the Code. It does not call for any
interference in exercise of the inherent powers of this Court under Section
482 of the Code.
10. The Petition is accordingly dismissed.
G.P. MITTAL, J.
MARCH 08, 2013
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