Atul Khanna vs State of Punjab and another

This is a petition under Section 482 of Code of Criminal Procedure for quashing the order dated 11.7.2018 vide which application under Section 311

Cr.P.C. was allowed subject to costs of ` 10,000/-payable to the accused and the complainant was allowed to appear as his own witness.

Counsel for the petitioners submits that the complainant is delaying the proceedings and costs have been imposed upon him so many times. Reliance

has been placed on various interlocutory orders. He further submits that the special power of attorney of the complainant has already stepped in the

witness box and the examination of the complainant will prejudice the defence of the petitioners. Reliance has been placed upon the judgments of this

Court in Varun Enterprises v. Sunita Punia and another; 2015 (32) RCR (Criminal) 789 and CRM- M-26120-2015 titled as Akash Steel v. Ravinder

Kumar decided on 8.5.2017.

I have given my thoughtful consideration to the contention of the counsel for the petitioner and gone through the material available on record.

Under Section 311 Cr.P.C. the Magistrate has wide powers regarding examination of material witness during the course of trial at any stage. The only

criteria for exercise of this power is that it should appear to the court that the evidence is essential to the just decision of the case. The provision is

intended to be wide in view of the repeated use of the word “any†throughout its length. Interest of justice demands that in the facts of the case,

the Magistrate should have allowed the additional evidence to be led under Section 311 of the Code as prayed by the appellant. On the basis of the

evidence so recorded, the Magistrate might have proceeded to frame a charge under Section 494 IPC against the accused if the material on record

justified it.

Hon'ble Supreme Court in Zahira Habibullah Sheikh and another v. State of Gujarat and others; 2006 (2) RCR (Criminal) 448 has held in para 25 and

26 as under : -

“25. In this context, reference may be made to Section 311 of the Code which reads as follows:

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.

The section is manifestly in two parts. Whereas the word used in the first part is ""may"", the second part uses ""shall"". In consequences, the first part

gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon

any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been

recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence

appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court

the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no

limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be

exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for

doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is

the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in

a position to speak important relevant facts.

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 the 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.â€​

To the mind of this Court, examination of the complainant is essential for just decision of the case. The facts in both the cases cited by the counsel for

the petitioners are distinguishable on facts.

In view of the above, this Court is of the view that no illegality, irregularity or infirmity is found in the impugned order. Thus, no ground is made out for

interference by this Court. Accordingly, the present petition is dismissed.