BhushanThapar vs State of Punjab

Mehinder Singh Sullar, J.—The conspectus of the facts, which needs a necessary mention, relevant for the limited purpose of deciding the core controversy, involved in the instant petition and oozing out, from the record, is that, a criminal case was registered against the petitioner-accused, vide FIR No. 244 dated 20.7.2002, on accusation of having committed the offences punishable under Sections 406, 411 and 420 IPC by the police of Police Station Civil Lines, Patiala. Having completed all the codal formalities, the evidence of the prosecution was closed. Thereafter, the petitioner-accused examined Amarjit Singh, retired SI as DW7 on 9.1.2010, but he abruptly left the Court and was not subjected to cross-examination. He even did not sign his statement of examination-in-chief. Finding no alternative, petitioner-accused moved an application (Annexure P1) for re-summoning and recalling the retired SI Amarjit Singh (DW7) to prove the documents mentioned therein. His prayer was refuted and the prosecution filed the reply (Annexure P2) to the application.

The trial Magistrate dismissed the application (Annexure P1), by way of impugned order dated 17.3.2012 (Annexure P3).

The petitioner did not feel satisfied and preferred the present petition challenging the impugned order (Annexure P3), invoking the provisions of Section 482 Cr.P.C.

Notice of the petition was issued to the respondent and Mr. Amandeep Singh Rai, Deputy Advocate General, Punjab appeared on behalf of the State.

After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, the instant petition deserves to be partly accepted in this context.

As is evident from the record, that petitioner-accused examined retired SI Amarjit Singh (DW7) to prove the documents, but he left the Court even without signing his statement of examination-in-chief and without subjecting to cross-examination, which necessitated him (petitioner) to file the application (Annexure P1) for re-summoning him (Amarjit Singh DW7). The main grounds, which appear to have been weighed with the trial Court to negate the claim, were that the case in hand is targeted old one and lingering for defence evidence, the petitioner did not prove the documents indicated therein at the time when his evidence was recorded and he availed many opportunities for producing his defence evidence.

Ex facie, it may be true, but here, to me, the Magistrate slipped into a legal error in this respect. The mere fact that the case is targeted old one and the petitioner has availed many opportunities to produce the evidence, ipso facto, is not a cogent ground to dismiss the application (Annexure P1) moved by him. It is not a matter of dispute that he has examined retired SI Amarjit Singh (DW7), but he rudely left the Court even without signing his statement of examination-inchief and without subjecting to cross-examination. In this manner, the petitioner cannot be blamed in this behalf. To my mind, the re-examination of DW7 SI Amarjit Singh would be essential to decide the real controversy between the parties, particularly when he was partly examined and himself abruptly left the Court, as discussed hereinabove. Section 311 Cr.P.C. postulates that "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."

Meaning thereby, it is the statutory duty of the Court to make every endeavour that the best available evidence should be brought before the Court for just decision of the case. Moreover, the production of such essential evidence is the legal requirement of fair trial. This matter is no more res integra and is now well settled.

An identical came to be decided by the Hon''ble Apex Court in case Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd. 2008 (3) R.C.R. (Criminal) 897, wherein, having interpreted the provisions of Section 311 Cr.PC, it was ruled as under (paras 7 to 9) :-

The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, 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 anyone as a witness, or (b) to examine any person present 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 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 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 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.

As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short "the Evidence Act"") are based on this rule. 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 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.

The ratio of law laid down by the Hon''ble Supreme Court "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand. Thus, taking the accusation/nature of the offence into focus, the trial Magistrate ought to have granted one more opportunity to the petitioner-accused, to conclude his defence evidence, particularly, when the prosecution can well be compensated with adequate costs in this regard. Therefore, to me, the trial Court has committed the illegality and material procedural irregularity and the impugned order (Annexure P3) cannot legally be maintained in the obtaining circumstances of the case. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, the instant petition is hereby accepted. Consequently, the impugned order (Annexure P3) is set aside. The trial Court is directed to provide one more opportunity to the petitioner-accused to conclude his defence evidence. However, this would be subject to payment of Rs. 10,000/- as costs, to be paid by the petitioner-accused to the prosecution. The Registry is directed to immediately send a copy of this order to the trial Court for compliance.

Needless to mention that if the petitioner does not take effective steps or otherwise delay the production of defence evidence, then the same would be deemed to have been closed.