Gujarat High Court
Iqbal Ahmed Abdul Karim Khatri vs State Of Gujarat on 31 August, 2023
Bench: Sandeep N. Bhatt
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R/SCR.A/8232/2018 ORDER DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8232 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8233 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8246 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8247 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8248 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8249 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8250 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8251 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8252 of 2018
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IQBAL AHMED ABDUL KARIM KHATRI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR SHAKEEL A QURESHI(1077) for the Applicant(s) No. 1
MR HARDIK A DAVE(3764) for the Respondent(s) No. 2
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 31/08/2023
COMMON ORAL ORDER
1.1 Rule. The matters are between the same parties.
Though notice is served to the complainant in one of the
matters and the complainant has also filed appearance
though the learned advocate, the complainant, reasons -
know to learned advocate for petitioner, has not chosen
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to appear in the other matters. For this very purpose
only, the Court has granted time to the learned advocate
for the complainant to take appropriate instruction in the
other matters. Today, when the matters are called out,
learned advocate for the complainant has submitted that
he has no instruction for the other matters and he is
appearing in only two matters i.e. Special Criminal
Application Nos.8232 of 2018 and 8233 of 2018, for
respondent No.2.
1.2 Since the issues involved in the present petitioners
are identical in nature and parties are also similar i.e.
complainant is same in all the matters, the matters are
taken for consideration and decided by common order.
Special Criminal Application No.8232 of 2018 is
considered as leading matter.
2. The present petition is filed for seeking following
reliefs:
"A) Admit this petition.
(B) Allow this petition and quash and set aside order
dated 13th August 2018 (ANNEXURE 'A') passed in
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the application below Exhibit 35 in Criminal Case No.
41533 of 2015 by the learned 8th Additional Senior
Civil Judge and Judicial Magistrate, First Class, Surat
and remand the matter to the trial court to decide in
light of the decisions relied on by the petitioner.
(C) Pending admission hearing and final disposal of
this petition this Hon'ble Court be pleased to stay
operation, implementation and execution of order dated
13th August 2018 (ANNEXURE 'A') passed in the
application below Exhibit 35 in Criminal Case No.
41533 of 2015 by the learned th Additional Senior
Civil Judge and Judicial Magistrate, First Class, Surat
and further be pleased to stay further proceedings of
Criminal Case No.41533 of 2015.
(D) This Hon'ble Court be pleased to grant any other
and further reliefs as deemed fit and proper in the
interest of justice."
3. Brief facts of the case as per the case of the
petitioner in this petition are as such that the learned
8th Additional Senior Civil Judge and Judicial
Magistrate, First Class, in a group of nine matters,
passes a common order dated 13.8.2018 below the
application- Exhibit 35 filed by the original complainant
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under Section 311 of the Code of Criminal Procedure
being Criminal Case No.41533 of 2015 and other such
cases, allowing the said applications directing to keep
present and submit his affidavit in chief examination.
However, looking at the Rojkam, it becomes evident that
though the matter was filed by the other side in the
year 2015, deposition was also recorded and after coming
to know that in the deposition there are several lacuna
and with a view to fill up those lacunae only the
present application has been filed on 13.08.2018 for
examination of the original complainant though his power
of attorney has already been examined. Therefore,
invocation of section 311 of the Code at a belated stage
and also filing up of lacunae is not permissible as per
the settled proposition of law as held in the case of AG
versus Shiv Kumar Yadav, reported in A.I.R. 2015 SC
3501 and decision reported in (2017) 9 SCC 350. Hence,
the present petition is preferred.
4. Heard learned advocate Mr. Shakeel A. Qureshi for
the petitioner, Mr. Hardik A. Dave, learned advocate for
the respondent No.2 - complainant in Special Criminal
Application Nos.8232 of 2018 and 8233 of 2018, for
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respondent No.2 in remaining captioned matters, notice
remained unserved though the saem respondent No.s is
appearing in one of the matters and Mr. Chintan Dave,
learned Additional Public Prosecutor (APP) for the
respondent No.1 - State.
5.1 Learned advocate Mr. Shakeel A. Qureshi for the
petitioner has submitted that the petitioner - original
accused is challenging the order passed by the 8th
Additional Senior Civil Judge and Judicial Magistrate,
First Class in the complaint filed under Section 138 of
the Negotiable Instruments Act, 1881, which was filed by
the respondent No.2 - Laxmanbhai Chuhadmal Gidwani,
who is power of attorney holder of original complainant
- Swapnil Chauhan. Furthermore, he has submitted that
the present petitioner is challenging the order 13.8.2018
passed by the learned Magistrate by allowing the
application filed by the original complainant under
Section 311 of the Criminal Procedure Code of Section
183 complaint. Parties are company petitioner and
original accused and respondent No.2 - power of attorney
holder of original complainant.
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5.2 Furthermore, he has submitted that power of
attorney was executed by Swapnil Chauhan to Laxman
Gidwani on 4.6.2015 and at that time, power of attorney
holder was not having holder of cheque in due course.
He has emphasized that under Section 138 of Negotiable
Instruments Act, proceedings initiated by the original
complainant - Swapnil Chauhan through his power of
attorney holder - Laxman Gidwani on 6.6.2015. He has
pointed out that the deposition of evidence on oath under
Section 135 of the N.I. Act was recorded on 6.6.2015 and
documentary evidence was also produced on same date.
Thereafter, the cross-examination of the power of
attorney holder - Laxman Gidwani was recorded on
6.6.2015. Thereafter, evidence of complainant was placed
on record and the matter was kept for further
proceeding by way of recording further statement under
Section 313 of the Criminal Procedure Code of the
original accused. Thereafter, as the right is already
closed by the trial court, at that point of time, after
such a belated stage, approximately, after three years, a
application was given by the present complainant for
opening his right for examination or original complainant
which is given on 13.8.2018. That application is allowed
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by the trial court. Furthermore, he has highlighted that
there is inordinate delay in filing application under
Section 311 of the Criminal Procedure Code i.e. about
three years. Hence, considering the judgment of the
Hon'ble Apex Court in the cases of (i) Ratanlal versus
Prahlad Jat & Ors. reported in (2017) 9 SCC 340, more
specifically, paragraphs 17 and 21 are relevant, (ii) Dr.
Rajesh Talwar versus C.B.I. reported in (2014) 1 SCC
628, more specifically, paragraphs 9 and 11 are relevant
and has submitted that such application cannot be
granted at the belated stage.
5.3 Furthermore, he has pointed out that the recalling
of recalling of the witness who is already examined
cannot be granted under Section 311 in routine manner
or to fill up the lacuna.
5.4 He has relied on the judgment of the Hon'ble Apex
Court in the cases of (i) Rajendra Prasad versus Narcotic
Cell through its Officer In Charge, Delhi reported in
(1999) 6 SCC 110, more specifically, paragraphs 9 and
11 are relevant, (ii) A.G. versus Shiv Kumar Yadav
reported in AIR 2015 SC 351, more specifically,
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paragraphs 15, 27 and 29 are relevant.
5.5 Furthermore, he has highlighted that powers under
Section 311 should not be exercised by the trial court
just with a view to fill up the lacuna in the evidence of
complainant, which was represented through power of
attorney holder, whose evidence was recorded way back
on 6.6.2015 and application was filed on 13.8.2018, just
with a view to fill up the lacuna, which was coming
forth on record in cross-examination. Furthermore, he has
submitted that the special proceedings are arising under
the special statutes like N.I. Act and considering relevant
provisions, the said provisions are required to be strictly
construed and present petitioner - accused as well as
complainant would be having technical legal defence or
ground in the proceeding under Section 138 of the N.I.
Act, in that case, the power under Section 311 is
required to be exercised with due care and caution. He
has further submitted that Section 2 of the provisions of
the Power of Attorney Act, 1882 is required to be
considered. Thereafter, he has submitted that considering
such provisions, it is revealed that the trial court has
committed gross error in allowing the application filed by
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the present complainant, which in a given case, can be
considered at the any stage of trial, but looking to the
facts of the present case, such order is erroneous and
improper as it cause prejudice to the rights of the
present petitioner. Therefore, he has prayed to allow this
application.
6. Per contra, Mr. Chintan Dave, learned Additional
Public Prosecutor for the respondent No.1 - State with
Mr Hardik A. Dave have jointly supported the order
passed by the trial court and have submitted that the
trial court can pass the order at any stage, more
particularly, under Section 311, the Court has powers to
pass such order at any point of time. He has drawn my
attention to the judgment of the Hon'ble Apex Court in
the case of Zahira Habibullah Sheikh versus State of
Gujarat reported in (2006) 3 SCC 374 (ii) Godrej Pacific
Tech. Ltd. versus Computer Joint India Ltd. reported in
(2008) 11 SCC 108, and have submitted that recently
also, the Hon'ble Apex Court has reiterated the same
and has highlighted that looking to the tenor the
application, applicant essentially prays for re-opening of
his right for leading the evidence as the right is closed
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as only one one occasion, the complainant could not
remained present. Therefore, they have submitted that
the trial court has not committed error by allowing the
application under Section 311. Though he has not prayed
in the application, they have also submitted during the
course of argument that he wants to examine the officer
of the bank also in support of his submission, and
therefore, they have submitted that the trial court has
not committed any error and has rightly exercised the
powers under Section 311 of the Criminal Procedure
Code.
7.1 I have considered the rival submissions made at the
bar by the respective parties. I have also perused the
application as well as impugned order passed by the
trial court.
7.2.1 It is fruitful of refer Section 311 of the
Criminal Procedure Code, as under:
"Section 311 in The Code Of Criminal Procedure,
1973:-
311. Power to summon material witness, or examine
person present. Any Court may, at any stage of any
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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."
7.2.3 It is also fruitful to refer Section 138 of the
Negotiable Instruments Act, 1881, as under
"Section 138 in The Negotiable Instruments Act,
1881:-
138. Dishonour of cheque for insufficiency, etc., of
funds in the account. --Where any cheque drawn by a
person on an account maintained by him with a
banker for payment of any amount of money to
another person from out of that account for the
discharge, in whole or in part, of any debt or other
liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit
of that account is insufficient to honour the cheque or
that it exceeds the amount arranged to be paid from
that account by an agreement made with that bank,
such person shall be deemed to have committed an
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offence and shall, without prejudice to any other
provisions of this Act, be punished with imprisonment
for 19 a term which may be extended to two years],
or with fine which may extend to twice the amount of
the cheque, or with both: Provided that nothing
contained in this section shall apply unless--
(a) the cheque has been presented to the bank within
a period of six months from the date on which it is
drawn or within the period of its validity, whichever is
earlier;
(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand for the
payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque, 20
[within thirty days] of the receipt of information by
him from the bank regarding the return of the cheque
as unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee or,
as the case may be, to the holder in due course of the
cheque, within fifteen days of the receipt of the said
notice.
Explanation.-- For the purposes of this section, "debt
or other liability" means a legally enforceable debt or
other liability."
7.2.4 It is also fruitful to refer Section 2 of the
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Power of Attorney Holder Act, 1882, as under
"Section 2 in The Powers-of-attorney act, 1882:-
2. Execution under power-of-attorney.--The donee of a
power-of-attorney may, if he thinks fit, execute or do
any 3 [***] instrument or thing in and with his own
name and signature, and his own seal, where sealing
is required, by the authority of the donor of the
power; and every 3 [***] instrument and thing so
executed and done, shall be as effectual in law as if it
had been executed or done by the donee of the power
in the name, and with the signature and seal, of the
donor thereof. This section applies to powers-of-attorney
created by instruments executed either before or after
this Act comes into force."
7.3 It becomes evident that the complaint is filed
through the power of attorney holder under Section 138
of the N.I. Act. Further, the power-of-attorney holder has
also deposed by way of affidavit, who was cross-examined
by the defence. Thereafter, the matter is tested for three
year and the stage of evidence to evidence further
evidence is also closed by the trial court and matter is
posed for recording further statement. It becomes evident
that at this stage, the respondent No.2 - complainant
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has filed the application for opening his right with a
view to lead his evidence. Once his power of attorney
has already deposed before the trial court, normally, the
Court should not permit the original complainant to
depose as it is rightly contented by advocate for the
petitioner that it amount to fill up the lacuna.
7.4.1 It is relevant to refer the judgment of the
Hon'ble Apex Court in the case of Rajendra Prasad
versus Narcotic Cell through its Officer In Charge, Delhi
reported in (2019) 14 SCC 328, more particularly,
paragraphs 6, 7 and 11 are relevant, as under:
"6. It is a common experience in criminal courts that
defence counsel would raise objections whenever courts
exercise powers under Section 311 of the Code or
under Section 165 of the Evidence Act by saying that
the Court could not fill the lacuna in the prosecution
case'. A lacuna in prosecution is not to be equated
with the fallout of an oversight committed by a public
prosecutor during trial, either in producing relevant
materials or in eliciting relevant answers from
witnesses. The adage `to err is human' is the
recognition-of the possibility of making mistakes to
which humans are proved. A corollary of any such
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latches or mistakes during the conducting Of a case
cannot be understood as the lacuna which a court
cannot fill up.
7. Lacuna in the prosecution must be understood as
the inherent weakness or a latent wedge in the matrix
of the prosecution case. The advantage of it should
normally go to the accused in the trail of the case, but
an over sight in the management of the prosecution
cannot be treated as irreparable lacuna. No parry in a
trial can before-closed from correcting errors. If proper
evidence was not adduced or a relevant material was
not brought on record due to any inadvertence, the
court should be magnanimous in permitting such
mistakes to be rectified. After all, function of the
criminal Court is administration of criminal justice and
not to count errors committed by the parties or to find
out and declare who among the parties performed
better.
11. We cannot therefore accept the contention of the
appellant as a legal proposition that the Court cannot
exercise power of re-summoning any witness if once
that power was exercised, nor can the power be
whittled down merely on the ground that prosecution
discovered latches only when the defence highlighted
them during final arguments, The power of the court is
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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 re-summoning certain
witnesses cannot therefore be spurned down nor
frowned at."
7.4.2 It is also relevant to refer the judgment of
the Hon'ble Apex Court in the case of Vijay Kumar
versus State of Uttar Pradesh, reported in (2011) 8 SCC
136, more particularly, paragraphs 7, 18 and 20 are
relevant, as under:
"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
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examine her as a court witness and has given the
impugned direction without assigning any reason.
18. The High Court failed to consider the case of the
prosecution that the application was submitted by the
respondent No. 2 only to delay the trial and no case
was made out by the respondent No. 2 as to why
direction should be given to examine Smt. Ruchi
Saxena as a court witness. In a bribe case what is
required to be proved by the prosecution is that there
was a demand of bribe by the accused from the
complainant and that pursuant to the said demand,
bribe amount was accepted by the accused. To prove
this case it was not necessary for the court to
examine Smt. Ruchi Saxena as a court witness.
Neither the respondent No. 2 in his application nor
the court in the impugned judgment has specified the
reason as to why and how examination of Smt. Ruchi
Saxena as a court witness is necessary.
20. If this is the approach to be made while
deciding application under Section 311 of the Code of
Criminal Procedure, this Court fails to understand as
to how the evidence of Smt. Ruchi Saxena was
relevant in the instant case and why direction should
be given to examine her as a court witness, as she
was neither present at the time when the bribe was
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demanded or even at the time when the trap was
arranged and laid. Without examining the relevance of
evidence, which may be tendered by Smt. Ruchi
Saxena or the necessity of examining her as a court
witness or examining the question of prejudice if at all
which is likely to be caused to the defence, if she is
not examined, the High Court has directed the learned
Special Judge to examine Smt. Ruchi Saxena as a
court witness. There is no manner of doubt that the
power under Section 311 of the Code of Criminal
Procedure, 1973 is exercised arbitrarily and, therefore,
the impugned judgment is liable to be set aside."
7.4.3 It is also relevant to refer the judgment of
the Hon'ble Apex Court in the case of Swapan Kumar
Chatterjee v. C.B.I. reported in (2019) 14 SCC 328,
whereby the Hon'ble Apex Court has observed that such
application cannot be considered at the belated stage, if
it is filed with a view to filling the lacuna in the
evidence produced by the parties concerned.
7.4.4 It is relevant to refer the judgment of this
Court in the case of Naranbhai Dayaljibhai Savani
versus State of Gujarat reported in 2019 (0) AIJEL-HC
243128, more particularly, paragraphs 4 & 9 are
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relevant, as under:
4. It appears that the petitioner (original accused) in
various proceedings initiated under section 138 of
Negotiable Instrument Act moved applications under
section 311 of Code of Criminal Procedure for recalling
of the witness viz. the complainant for further cross
examination. Before, present petitions are considered on
merits, it is a matter of fact that the petitioner has
not responded to the notice issued by the original
complainant before institution of proceedings under
Negotiable Instrument Act. Further, the complainant
has been cross examined at the hands of the petitioner
at length.
5. According to the petitioner, there is no any due
amount payable to the respondent - complainant in
view of the fact that the respondent - complainant got
registered documents from the petitioner's son in
respect of three flats. Such aspect R/SCR.A/7833/2019
ORDER of the matter was not brought on record,
despite the fact that the petitioner's advocate was
informed and apprised about the said fact. In light of
this position, the petitioner relieved his earlier advocate
and engaged another advocate and therefore, the fact of
registration of documents by the petitioner's son
requires to be brought on record, so as to prove that
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there is no amount due and payable by the petitioner
towards the disputed cheques.
6. Before the submissions made at bar are considered
on its merits, it is necessary and relevant to reproduce
observations made by the Hon'ble Apex Court in the
case of Manju Devi v/s. State of Rajasthan and Anr.
reported in 2019(2) Cri.CC 549, more particularly, para
9, which reads as under:-
"9. Section 311 CrPC 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 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"
9.1. It needs hardly any emphasis that the
discretionary powers like those under Section 311 CrPC
are essentially intended to ensure that every necessary
and appropriate measure is taken by the Court to keep
the record straight and to clear any ambiguity in so
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far as the evidence is concerned as also to ensure that
no prejudice is caused to anyone. The principles
underlying Section 311 CrPC and amplitude of the
powers of the Court thereunder have been explained by
this Court in several decisions 1. In Natasha Singh v.
CBI (State) : (2013) 5 SCC 741, R/SCR.A/7833/2019
ORDER though the application for examination of
witnesses was filed by the accused but, on the
principles relating to the exercise of powers under
Section 311, this Court observed, inter alia, as under:-
"8. Section 311 CrPC empowers the court to summon a
material witness, or to examine a person present at
"any stage" of "any enquiry", or "trial", or "any other
proceedings" under Cr.PC or to summon any person as
a witness, or to recall and re-examine any person who
has already been examined if his evidence appears to
it, to be essential to the arrival of a just decision of
the case. Undoubtedly, the CrPC has conferred a very
wide discretionary power upon the court in this respect,
but such a discretion is to be exercised judiciously and
not arbitrarily. The power of the court in this context
is very wide, and in exercise of the same, it may
summon any person as a witness at any stage of the
trial, or other proceedings. The court is competent to
exercise such power even suo motu if no such
application has been filed by either of the parties.
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However, the court must satisfy itself, that it was in
fact essential to examine such a witness, or to recall
him for further examination in order to arrive at a
just decision of the case.
15. The scope and object of the provision is to enable
the court to determine the truth and to render a just
decision after discovering all relevant facts and
obtaining proper proof of such facts, to arrive at a just
decision of the case. Power must be exercised
judiciously and not capriciously or arbitrarily, as any
improper or capricious exercise of such power may lead
to undesirable results. An application under Section 311
CrPC must not be allowed only to fill up a lacuna in
the case of the prosecution, or of the defence, or to the
disadvantage of the accused, or to cause serious
prejudice to the defence of the accused, or to give an
unfair advantage to the opposite party. Further, the
additional evidence must not be received as a disguise
for retrial, or to change the nature of the case against
either of the parties. Such a power must be exercised,
provided that the evidence that is likely to be tendered
by a witness, is germane to the issue involved. An
opportunity of rebuttal however, must be given to the
other party. The power conferred under Section 311
CrPC must therefore, be invoked by the court only in
order to meet the ends of justice, for strong and valid
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reasons, and the same must be exercised with great
caution and circumspection. The very use of words such
as "any Court", "at any stage", or "or any enquiry,
trial or other proceedings", "any person" and "any such
person" clearly spells out that the provisions of this
section have been expressed in the widest possible
terms, and do not limit the discretion of the Court in
any way. There is thus no escape if the fresh evidence
to be obtained is essential to the just decision of the
case. The determinative factor should therefore be,
whether the summoning/recalling of the said witness is
in fact, essential to the just decision of the case."
7. Now coming to the facts of the present case, it
appears that the petitioner has cross examined the
complainant on the aspect of registration of documents
with respect to three flats. In that view of the matter,
subordinate courts below did not find any merit in the
applications moved by the petitioner under section 311
of the Code of Criminal Procedure and more
particularly on account of engagement of another
advocate.
8. Apart from it, it is a matter of fact that the
applications are not moved for further cross
examination on account of subsequent development or
finding any important and relevant material, which
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may be helpful for further cross examination of the
complainant.
9. For the sake of repetition, it is required to be noted
here that the petitioner has not responded to the
notice issued by the complainant prior to institution of
proceedings under section 138 of the Negotiable
Instrument Act on the one hand and on the other
hand, learned advocate for the petitioner has cross
examined the respondent - complainant on the aspect
of R/SCR.A/7833/2019 ORDER alleged registered sale
deed and therefore, subordinate courts below and also
this Court do not find any reason to exercise powers
under section 311 of the Code of Criminal Procedure,
as there is no escape of evidence with respect to
registered sale deeds as stated at bar, at the time of
cross examination of the respondent - complainant and
therefore, present petitions being devoid of merits, both
on law and facts are hereby rejected at admission
stage."
7.4.5 It is also fruitful to refer the judgment of the
Hon'ble Apex Court in the case of State versus N.
Seenivasagan reported in (2021) 14 SCC 1, more
particularly, paragraphs 12 and 13 are relevant, as
under:
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"12. In our view, having due regard to the nature and
ambit of Section 311 of the CrPC, it was appropriate
and proper that the applications filed by the
prosecution ought to have been allowed. Section 311
provides that any Court may, at any stage of any
inquiry, trial or other proceedings under the CrPC,
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". The true test, therefore, is whether it appears to
the Court that the evidence of such person who is
sought to be recalled is essential to the just decision
of the case.
13. In Manju Devi v State of Rajasthan4, a two-Judge
bench of this Court noted that an application under
Section 311 could not be rejected on the sole ground
that the case had been pending for an inordinate
amount of time (ten years there). Rather, it noted that
"the length/duration of a case cannot displace the basic
requirement of ensuring the just decision after taking
all the necessary and material evidence on record. In
other words, the age of a case, by itself, cannot be
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decisive of the matter when a prayer is made for
examination of a material witness". Speaking for the
Court, Justice Dinesh Maheshwari expounded on the
principles underlying Section 311 in the following
terms:
10. It needs hardly any emphasis that the
discretionary powers like those under Section 311
CrPC are essentially intended to ensure that
every necessary and appropriate measure is taken
by the Court to keep the record straight and to
clear any ambiguity insofar as the evidence is
concerned as also to ensure that no prejudice is
caused to anyone. The principles underlying
Section 311 CrPC and amplitude of the powers
of the court thereunder have been explained by
this Court in several decisions in Natasha Singh
v. CBI, though the application for examination of
witnesses was filed by the accused but, on the
principles relating to the exercise of powers
under Section 311, this Court observed, inter
alia, as under: (SCC pp. 746 & 748-49, paras 8
&15) "8. Section 311 CrPC empowers the court
to summon a material witness, or to examine a
person present at "any stage" of "any enquiry",
or "trial", or "any other proceedings" under CrPC,
or to summon any person as a witness, or to
recall and re-examine any person who has
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already been examined if his evidence appears to
it, to be essential to the arrival of a just
decision of the case . Undoubtedly, CrPC has
conferred a very wide discretionary power upon
the court in this respect, but such a discretion is
to be exercised judiciously and not arbitrarily.
The power of the court in this context is very
wide, and in exercise of the same, it may
summon any person as a witness at any stage of
the trial, or other proceedings. The court is
competent to exercise such power even suo motu
if no such application has been filed by either of
the parties. However, the court must satisfy
itself, that it was in fact essential to examine
such a witness, or to recall him for further
examination in order to arrive at a just decision
of the case.
***
15. The scope and object of the provision is to
enable the court to determine the truth and to
render a just decision after discovering all
relevant facts and obtaining proper proof of such
facts, to arrive at a just decision of the case.
Power must be exercised judiciously and not
capriciously or arbitrarily, as any improper or
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capricious exercise of such power may lead to
undesirable results. An application under Section
311 CrPC must not be allowed only to fill up a
lacuna in the case of the prosecution, or of the
defence, or to the disadvantage of the accused, or
to cause serious prejudice to the defence of the
accused, or to give an unfair advantage to the
opposite party. Further, the additional evidence
must not be received as a disguise for retrial, or
to change the nature of the case against either
of the parties. Such a power must be exercised,
provided that the evidence that is likely to be
tendered by a witness, is germane to the issue
involved. An opportunity of rebuttal however,
must be given to the other party. The power
conferred under Section 311 CrPC must therefore,
be invoked by the court only in order to meet
the ends of justice, for strong and valid reasons,
and the same must be exercised with great
caution and circumspection. The very use of
words such as "any court", "at any stage", or "or
any enquiry, trial or other proceedings", "any
person" and "any such person" clearly spells out
that the provisions of this section have been
expressed in the widest possible terms, and do
not limit the discretion of the court in any way.
There is thus no escape if the fresh evidence to
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be obtained is essential to the just decision of
the case. The determinative factor should
therefore be, whether the summoning/recalling of
the said witness is in fact, essential to the just
decision of the case." (emphasis in original)"
7.5 Additionally, prima facie, considering the position of
law and facts of the present case, the trial court has
committed gross in allowing the application, which is
filed at the stage of recording of further statement, and
more particularly, when the power-of-attorney holder has
already deposed and cross-examined. Thereafter, there is
no purpose to permit the complainant himself to depose
and filling the lacuna, which is after three year, his
right is closed for adducing the evidence for adducing
evidence. Therefore, the the present petition deserves to
be allowed.
8. Accordingly, the present petitions are allowed.
9. The impugned order dated 13.8.2018 passed in the
application below Exhibit 35 in Criminal Case No. 41533
of 2015 by the learned 8th Additional Senior Civil Judge
and Judicial Magistrate, First Class, Surat as well as
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consequential proceedings if any are quashed and set
aside in Special Criminal Application No.8233 of 2018.
10. The impugned order dated 13.8.2018 passed in the
application below Exhibit 39 in Criminal Case No. 41534
of 2015 by the learned 8th Additional Senior Civil Judge
and Judicial Magistrate, First Class, Surat as well as
consequential proceedings if any are quashed and set
aside in Special Criminal Application No.8232 of 2018.
11. The impugned order dated 13.8.2018 passed in the
application below Exhibit 42 in Criminal Case No. 41525
of 2015 by the learned 8th Additional Senior Civil Judge
and Judicial Magistrate, First Class, Surat as well as
consequential proceedings if any are quashed and set
aside in Special Criminal Application No.8246 of 2018.
12. The impugned order dated 13.8.2018 passed in the
application below Exhibit 33 in Criminal Case No. 41531
of 2015 by the learned 8th Additional Senior Civil Judge
and Judicial Magistrate, First Class, Surat as well as
consequential proceedings if any are quashed and set
aside in Special Criminal Application No.8247 of 2018.
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13. The impugned order dated 13.8.2018 passed in the
application below Exhibit 34 in Criminal Case No. 41532
of 2015 by the learned 8th Additional Senior Civil Judge
and Judicial Magistrate, First Class, Surat as well as
consequential proceedings if any are quashed and set
aside in Special Criminal Application No.8248 of 2018.
14. The impugned order dated 13.8.2018 passed in the
application below Exhibit 33 in Criminal Case No. 41528
of 2015 by the learned 8th Additional Senior Civil Judge
and Judicial Magistrate, First Class, Surat as well as
consequential proceedings if any are quashed and set
aside in Special Criminal Application No.8249 of 2018.
15. The impugned order dated 13.8.2018 passed in the
application below Exhibit 33 in Criminal Case No. 41527
of 2015 by the learned 8th Additional Senior Civil Judge
and Judicial Magistrate, First Class, Surat as well as
consequential proceedings if any are quashed and set
aside in Special Criminal Application No.8250 of 2018.
16. The impugned order dated 13.8.2018 passed in the
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application below Exhibit 34 in Criminal Case No. 41526
of 2015 by the learned 8th Additional Senior Civil Judge
and Judicial Magistrate, First Class, Surat as well as
consequential proceedings if any are quashed and set
aside in Special Criminal Application No.8251 of 2018.
17. The impugned order dated 13.8.2018 passed in the
application below Exhibit 35 in Criminal Case No. 41535
of 2015 by the learned 8th Additional Senior Civil Judge
and Judicial Magistrate, First Class, Surat as well as
consequential proceedings if any are quashed and set
aside in Special Criminal Application No.8252 of 2018.
18. It is clarified that the proceeding of trial shall be
expedited as early as possible, preferably on or before
31.3.2024 after giving proper opportunity to the parties
in all the captioned petitions.
Rule is made absolute in all the captioned petitions.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
