Smt. Narmada Pathak vs State of M.P.

Hon''ble Shri. Justice Sujoy Paul

Brief facts necessary for resolving the controversy are as under:

The petitioner is a widow of deceased Pramod Pathak, who was allegedly killed by accused Narayan Pathak, his own brother. The petitioner entered the witness box and deposed her statement on 12.9.2011 (Annexure P-2). In the statement, the petitioner stated that Santosh, Shivkumar and petitioner''s daughter came and informed her that Pramod (husband) was killed by Narayan (accused). Thereafter, the prosecution preferred an application dated 26.9.2011 u/s 311 of Cr.P.C. (Annexure P-3). In the said application, it is prayed that Santosh, Shivkumar and Sneha (daughter of petitioner) be summoned for deposition of their statements in view of petitioner''s statement Annexure P-2. This was objected by the other side.

Shri Ankit Saxena, learned counsel for the petitioner placed reliance on Rajendra Prasad Vs. The Narcotic Cell Through its Officer in Charge, Delhi, and 2011 (2) Crimes 161(Ori.) (State of Orissa Vs. Durjo @ Duryodhana Sanamajhi & others) to submit that the Court below ought to have allowed the said application and committed error in rejecting the same by order dated 12.10.2011.

Per contra, Shri Sanjay Gupta, Advocate for the accused supported the order and stated that the accused''s father met the police authorities much before filing of Annexure P-3 and preferred a complaint that the petitioner is threatening them that if Rs.2.00 lacs is not paid, she will depose against them. The learned counsel placed reliance on 2009 (4) Crimes 315 (M.P.) (Raghuveer Prasad Sharma Vs. State of M.P.).He further submits that on account of the fact that neither in the FIR it is stated that those persons have seen the incident nor their statements are recorded u/s 161 Cr.P.C., at this stage those persons cannot be permitted to enter the witness box.

Shri B.K.Sharma, learned Public Prosecutor supported the argument of the petitioner and stated that the Court below ought to have allowed the application of the State (Annexure P-3).

The scope of interference u/s 311 Cr.P.C. is discussed in detail by Supreme Court in (2007) 11 SCC 211 (Iddar and Others Vs. Aabida and Another). In para 9 and 10 of the said judgment the Apex Court held as under:-

In this context, reference may be made to Section 311 of the Criminal Procedure 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 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 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.

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 object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross-examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra

(Emphasis Supplied).

The Apex Court held that it is not only prerogative but also the plain duty of a Court to examine all those witnesses as it considers necessary for doing justice between the State and the subject. It 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. Thus, the object is the search of truth and for that all possible efforts should be made. In the light of this judgment, the Court below ought to have allowed the application of the prosecution. It cannot be forgotten that the names of witnesses includes the name of daughter of the deceased. She is an important witness for the purposes of gathering truth. In this view of the matter, the Court below should not have rejected the application of the prosecution.

So far the allegation regarding preferring of complaint to S.P. is concerned, the accused is at liberty to crossexamine those witnesses when they will enter the witness box. Merely because their statements are not recorded u/s 161 proceedings, will not stop the Court below to record their statements. In the facts and circumstances of this case and in the light of judgment in Iddar (supra), I have no hesitation to quash and set aside the order dated 12.10.2010. Application u/s 311 Cr.P.C. (Annexure P-3) is allowed. The Court below is directed to permit the witnesses proposed in the said application to enter the witness box on behalf of the prosecution. In the peculiar factual backdrop of this matter, the judgment in Raghuveer Prasad Sharma (supra) will have no application. More so, when the judgment of S.C. in Iddar (supra) holds the field. Petition stands allowed to the extent as indicated above.