Punjab-Haryana High Court
Sandesh vs State Of Haryana And Another on 18 April, 2024
Neutral Citation No:=2024:PHHC:057856
CRR 361-2022 (O&M) 2024:PHHC:057856 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
235 CRR 361-2022 (O&M)
Date of Decision: 18.04.2024
Sandesh ...Petitioner
Versus
State of Haryana and another ... Respondents
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. Ankur Lal, Advocate, for the petitioner.
Ms. Sheenu Sura, DAG, Haryana.
Mr. B.K. Bagri, Advocate, for respondent No. 2.
N.S.SHEKHAWAT, J. (Oral)
1. The petitioner has preferred the present petition against
the impugned order dated 15.02.2022 passed by the Court of
Additional Sessions Judge, Jhajjar, whereby, the application under
Section 311 Cr.P.C. moved by the prosecution was allowed in a
criminal case titled as "State Vs. Parvinder & and another", arising
out of FIR No. 322 dated 29.10.2019 under Sections 302, 201, 346,
364 and 34 IPC, registered at Police Station Sadar Jhajjar.
2. Tersely put, the facts which led to the registration of the
FIR in the present case are that the FIR was initially registered on the
basis of complaint moved by Bhagwanti Devi wife of Shamsher
Singh, who stated that on 28.10.2019, her husband Shamsher Singh
had left the residence at about 10.30 a.m. without disclosing anything
to her. She called him up at around 06.00 p.m. and he told that he was
with Parvinder (accused). On 29.10.2019, in the morning, she again
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made a call to her husband, which was attended by someone else, and
thereafter, the phone of her husband was brought to her by Sukhpal,
friend of her husband, who got it from Sanjay Yadav. She stated that
her husband was not traceable and the FIR was registered against
unknown persons. On 30.10.2019, the dead body of Shamsher Singh
was discovered in a canal and the offence under Section 302 IPC was
added in the present case. Parvinder (accused) was arrested on
30.10.2019.
3. During the course of trial, the statement of complainant
was recorded as PW1 and statement of Sandeep was recorded in part
as PW2. After examination-in-chief of PW2 Sandeep was deferred,
the prosecution moved the present application under Section 311
Cr.P.C., which was allowed by the trial Court by passing the
impugned order. Challenging the legality of the impugned order, the
learned counsel for the petitioner contends that the trial Court had
acted on its own assumptions in arriving at a conclusion that annexure
P-6 was a piece of evidence, which was just and essential for the fair
decision of the case. He further contends that even from the
photograph, it was not known as to when the photograph was clicked
and even the deceased was not present/visible in the said photograph.
He further contends that from annexure P-6, it is apparent that two
boys are visible in the said photograph and, admittedly, one of the
person visible in the said photograph is the petitioner. However, the
identity of other person could not be ascertained. He further contends
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that even from the statements of various witnesses of the prosecution,
it was apparent that the petitioner was not present with the deceased.
In fact, the photograph (Annexure P-6) had no connection with the
death of the deceased. Further, there was no evidence to establish that
the photograph was clicked soon before his death or that the petitioner
or his co-accused were in the company of the deceased. Still further, it
is highly improbable that a person, who had conspired to kill a man
will proceed to publish the photograph of the victim with the caption
"as published". Apart from that, the law is well settled that no one can
be forced to appear as a witness against himself and the application
moved by the prosecution is liable to be dismissed by this Court.
4. On advance notice, learned State counsel has appeared
on behalf of the prosecution and submitted that the impugned order
passed by the trial Court is well reasoned and is liable to be upheld by
this Court.
5. I have heard the learned counsel for the parties and with
their able assistance, I have perused the record carefully.
6. Before proceeding further, it would be relevant to
examine Section 311 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 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
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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. In the recent judgment of Varsha Garg Versus The State
of Madhya Pradesh & others, Criminal Appeal No. 1021 of 2022.
Decided on 08.08.2022, it was held as under:
" 29. The first part of the statutory provision which uses
the expression "may" postulates that the power can be
exercised at any stage of an inquiry, trial or other
proceeding. The latter part of the provision mandates the
recall of a witness by the Court as it uses the expression
"shall summon and examine or recall and reexamine any
such person if his evidence appears to it to be essential to
the just decision of the case". Essentiality of the evidence
of the person who is to be examined coupled with the
need for the just decision of the case constitute the
touchstone which must guide the decision of the Court.
The first part of the statutory provision is discretionary
while the latter part is obligatory.
30. A two judge Bench of this Court in Mohanlal Shamji
Soni (supra) while dealing with pari materia provisions
of Section 540 of the Criminal Code of Procedure 1898
observed
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"16. The second part of Section 540 as pointed out albeit
imposes upon the court an obligation of summoning or
recalling and re-examining any witness and the only
condition prescribed is that the evidence sought to be
obtained must be essential to the just decision of the
case. When any party to the proceedings points out the
desirability of some evidence being taken, then the court
has to exercise its power under this provision -- either
discretionary or mandatory -- depending on the facts
and circumstances of each case, having in view that the
most paramount principle underlying this provision is to
discover or to obtain proper proof of relevant facts in
order to meet the requirements of justice."
Justice S Ratnavel Pandian, speaking for the two judge
Bench, noted that the power is couched in the widest
possible terms and calls for no limitation, either with
regard to the stage at which it can be exercised or the
manner of its exercise. It is only circumscribed by the
principle that the "evidence to be obtained should
appear to the court essential to a just decision of the case
by getting at the truth by all lawful means." In that
context the Court observed:
"18 ...Therefore, it should be borne in mind that the aid
of the section should be invoked only with the object of
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discovering relevant facts or obtaining proper proof of
such facts for a just decision of the case and it must be
used judicially and not capriciously or arbitrarily
because any improper or capricious exercise of the
power may lead to undesirable results. Further it is
incumbent that due care should be taken by the court
while exercising the power under this section and it
should not be used for filling up the lacuna left by the
prosecution or by 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 rival
side and further the additional evidence should not be
received as a disguise for a retrial or to change the
nature of the case against either of the parties."
31. Summing up the position as it obtained from various
decisions of this Court, namely Rameshwar Dayal v.
State of U.P., State of W.B. v. Tulsidas Mundhra,
Jamatraj Kewalji Govani v. State of Maharashtra,
Masalti v. State of U.P., Rajeswar Prosad Misra v. State
of W.B. and R.B. Mithani v. State of Maharashtra, the
Court held:
"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
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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 the examination of any
person which would depend on the facts and
circumstances of each case."
32. The power of the court is not constrained by the
closure of evidence. Therefore, it is amply clear from the
above discussion that the broad powers under Section
311 are to be governed by the requirement of justice. The
power must be exercised wherever the court finds that
any evidence is essential for the just decision of the case.
The statutory provision goes to emphasise that the court
is not a hapless bystander in the derailment of justice.
Quite to the contrary, the court has a vital role to
discharge in ensuring that the cause of discovering truth
as an aid in the realization of justice is manifest.
*** *** ***
38. Having dealt with the satisfaction of the requirements
of Section 311, we deal with the objection of the
respondents that the application should not be allowed as
it will lead to filling in the lacunae of the prosecution's
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case. However, even the said reason cannot be an
absolute bar to allowing an application under Section
311. 39. In the decision in Zahira Habibullah Sheikh (5)
v. State of Gujarat, which was more recently reiterated in
Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd.,
the Court specifically dealt with this objection and
observed that the resultant filling of loopholes on
account of allowing an application under Section 311 is
merely a subsidiary factor and the Court's determination
of the application should only be based on the test of the
essentiality of the evidence. It noted that:
"28. 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
side. This must be left to the parties. But in weighing the
evidence, the court can take note of the fact that the best
available evidence has not been given, and can draw an
adverse inference. The court will often have to depend on
intercepted allegations made by the parties, or on
inconclusive inference from facts elicited in the evidence.
In such cases, the court has to act under the second part
of the section. Sometimes the examination of witnesses as
directed by the court may result in what is thought to be
"filling of loopholes". That is purely a subsidiary factor
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and cannot be taken into account. Whether the new
evidence is essential or not must of course depend on the
facts of each case, and has to be determined by the
Presiding Judge.
(emphasis supplied)
40. The right of the accused to a fair trial is
constitutionally protected under Article 21. However, in
Mina Lalita Baruwa (supra), while reiterating Rajendra
Prasad (supra), the Court observed that it is the duty of
the criminal court to allow the prosecution to correct an
error in interest of justice. In Rajendra Prasad (supra),
the Court had held that
"8. 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 trial of the case, but an oversight in
the management of the prosecution cannot be treated as
irreparable lacuna. No party in a trial can be foreclosed
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
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the parties or to find out and declare who among the
parties performed better."
(emphasis supplied)
In the present case, the importance of the decoding
registers was raised in the examination of PW-41.
Accordingly, the decoding registers merely being
additional documents required to be able to appreciate
the existing evidence in form of the call details which are
already on record but use codes to signify the location of
accused, a crucial detail, which can be decoded only
through the decoding registers, the right of the accused
to a fair trial is not prejudiced. The production of the
decoding registers fits into the requirement of being
relevant material which was not brought on record due to
inadvertence.
41. Finally, we also briefly deal with the objection of the
respondents regarding the stage at which the application
under Section 311 was filed. The respondents have
placed reliance on Swapan Kumar (supra), a two judge
Bench decision of this Court, to argue that the
application should not be allowed as it has been made at
a belated stage. The Court in Swapan Kumar (supra)
observed:
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"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 wide
power under this Section to even recall witnesses for re
examination 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 are 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."
In the present appeal, the argument that the application
was filed after the closure of the evidence of the
prosecution is manifestly erroneous. As already noted
above, the closure of the evidence of the prosecution took
place after the application for the production of the
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decoding register and for summoning of the witness
under Section 311 was dismissed. Though the dismissal
of the application and the closure of the prosecution
evidence both took place on 13 November 2021, the
application by the prosecution had been filed on 15
March 2021 nearly eight months earlier. As a matter of
fact, another witness for the prosecution, Rajesh Kumar
Singh, was also released after examination and cross-
examination on the same day as recorded in the order
dated 13 November 2021 of the trial court.
42. The Court is vested with a broad and wholesome
power, in terms of Section 311 of the CrPC, to summon
and examine or recall and re-examine any material
witness at any stage and the closing of prosecution
evidence is not an absolute bar. This Court in Zahira
Habibulla H. Sheikh (supra) while dealing with the
prayers for adducing additional evidence under Section
391 CrPC at the appellate stage, along with a prayer for
examination of witnesses under Section 311 CrPC
explained the role of the court, in the following terms:
"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
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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 the
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."
(emphasis supplied)
Further, in Zahira Habibullah Sheikh (5) (supra), the
Court reiterated the extent of powers under Section 311
and held that:
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"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
thewitnesses 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, enquiries 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 any 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."
43. The Court while reiterating the principle enunciated
in Mohanlal Shamji Soni (supra) stressed upon the wide
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ambit of Section 311 which allows the power to be
exercised at any stage and held that:
"44. The power of the court under Section 165 of the
Evidence Act is in a way complementary to its power
under Section 311 of the Code. The section consists of
two parts i.e.: (i) giving a discretion to the court to
examine the witness at any stage, and (ii) the mandatory
portion which compels the court to examine a witness if
his evidence appears to be essential to the just decision
of the court. Though the discretion given to the court is
very wide, the very width requires a corresponding
caution. In Mohanlal v. Union of India this Court has
observed, while considering the scope and ambit of
Section 311, that the very usage of the words such as,
"any court", "at any stage", or "any enquiry or trial or
other proceedings", "any person" and "any such
person" clearly spells out that the section has expressed
in the widest-possible terms and do not limit the
discretion of the court in any way. However, as noted
above, the very width requires a corresponding caution
that the discretionary powers 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 any
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discretion but obligates and binds the court to take
necessary steps if the fresh evidence to be obtained is
essential to the just decision of the case, "essential" to
an active and alert mind and not to one which is bent to
abandon or abdicate. Object of the section is to enable
the court to arrive at the truth irrespective of the fact that
the prosecution or the defence has failed to produce some
evidence which is necessary for a just and proper
disposal of the case. The power is exercised and the
evidence is examined neither to help the prosecution nor
the defence, if the court feels that there is necessity to act
in terms of Section 311 but only to subserve the cause of
justice and public interest. It is done with an object of
getting the evidence in aid of a just decision and to
uphold the truth.
While reiterating the decisions of this Court in Karnel
Singh v. State of M.P., Paras Yadav v. State of Bihar,
Ram Bihari Yadav v. State of Bihar and Amar Singh v.
Balwinder Singh this Court held that the court may
interfere even at the stage of appeal:
"64. It is no doubt true that the accused persons have
been acquitted by the trial court and the acquittal has
been upheld, but if the acquittal is unmerited and based
on tainted evidence, tailored investigation, unprincipled
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prosecutor and perfunctory trial and evidence of
threatened/terrorised witnesses, it is no acquittal in the
eye of the law and no sanctity or credibility can be
attached and given to the socalled findings. It seems to
be nothing but a travesty of truth, fraud on the legal
process and the resultant decisions of courts -- coram
non judis and non est. There is, therefore, every
justification to call for interference in these appeals."
44. For the above reasons, we have come to the
conclusion that the decision of the High Court which is
impugned in the appeal is unsustainable. We accordingly
allow the appeal and set aside the impugned judgment
and order of the High Court dated 8 April 2022 in Misc.
Criminal Case No. 57152 of 2021 as well as the order of
the Second Additional Session Judge, Dr. Ambedkar
Nagar, District Indore dated 13 November 2021 in
Sessions Trial 227 of 2016 dismissing the application
filed by the prosecution. The application filed by the
prosecution for the production of the decoding registers
and for the summoning of the witnesses of the cellular
companies for that purpose is allowed. The Second
Additional Sessions Judge, Dr. Ambedkar Nagar, District
Indore is directed to conclude Sessions Trial No. 227 of
2016 by 31 October 2022.
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(emphasis supplied).
8. The law is well settled that the exercise of power under
Section 311 Cr.P.C. should be resorted to only with the object of
finding truth or obtaining proper proof for such facts, which will lead
to a just and correct decision of the case. If the evidence of any
witness appears to the Court to be essential to the just decision of the
case, it is the power of the Court to summon and examine or recall
and re-examine any such person. No doubt, the prosecution can never
be allowed to fill up the lacuna and the Court's determination of the
application should be based only on the test of essentiality of
evidence. Even the Court is under a legal obligation to satisfy itself
that it was in every respect, it is essential to examine such a witness or
to recall him for further examination in order to arrive at a just
decision of the case.
9. Adverting to the facts of the present case, it is apparent
that the occurrence had taken place on 28.10.2019 and the Facebook
post from the profile ID of Sandesh, accused, was itself of
29.10.2019, i.e., next day of the murder of Shamsher Singh containing
a caption written in Hindi as "Chal Chla Chal Teri Aakhari Sans
Tak". The trial Court has correctly observed that Bhagwanti Devi,
complainant had clearly mentioned in her complaint that when she
made a phone call on 28.10.2019 to her husband Shamsher Singh
(since deceased), he had replied that he was with Parvinder (accused).
Even, Sonu son of Balwant, a witness of the prosecution had also
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stated that on 28.10.2019, Sandesh (petitioner), Parvinder and
Shamsher Singh (since deceased) had gone to a hill near village
Khandolda on 28.10.2019 and while they were taking liqour,
Shamsher Singh (since deceased), had given him his mobile and got
clicked his photograph, in which, their photographs were also there
and apparently, the said Facebook post, which is sought to be placed
on record by way of the present application, is of 29.10.2019. Thus,
the evidence, which is sought to be placed on record by the
prosecution by moving the present application, is necessary for the
just disposal of the case and the discretion under Section 311 Cr.P.C.
has been correctly exercised by the trial Court. Even otherwise, if the
photograph or any other evidence is ordered to be placed on record,
no irreparable loss would be suffered by the accused, as they will get
sufficient opportunity to cross-examine the witnesses with regard to
the admissibility of the said document and would also be at liberty to
lead their defence.
10. In view of the above discussion, the present petition is
ordered to be dismissed.
18.04.2024 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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