SATBIR SINGH vs. THE STATE OF HARYANA

1 2023INSC786 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2023 ( @ OUT OF SLP(Crl.) No.1258/2022 ) SATBIR SINGH Appellant(s) VERSUS STATE OF HARYANA & ORS. Respondent(s) J U D G M E N T AHSANUDDIN AMANULLAH, J. Heard learned counsel appearing for the parties. 2. Leave granted. 3. The present appeal has been filed against the order dated 14.12.2021 in CRMM No.40058/2021 (hereinafter referred to as the “Impugned Order”) passed by the High Court of Punjab & Haryana at Chandigarh (hereinafter referred to as the “High Court”), by which the prayer for recall of the appellant as a witness in the trial before the Court below for further examination has been rejected. 4. The brief facts relating to the case are that the appellant made a complaint against the accused that they, being ex-employees of his company, had stolen company data and Signature Not Verified used such data to manufacture equipment, which was being Digitally signed by Indu Marwah Date: 2023.09.01 16:49:09 IST Reason: manufactured by the appellant’s company. During trial, before the Report from the Central Forensic Sciences Laboratory, 2 Chandigarh (hereinafter referred to as “CFSL”) could come, the evidence of the appellant was recorded. However, when the CFSL expert who had prepared the Report was examined on 20.08.2021 by the Court, though he described the data which was found on the hard disk(s) of the accused, but there was no reference as to whether they were comparable to/same in regard to what was allegedly stolen from the appellant’s company. Thus, under the circumstances, the appellant was constrained to apply for his recall as a witness, which was done within five days of the evidence of the CFSL expert being recorded i.e., on 25.08.2021. The same having been rejected, by the Trial Court and the High Court, the matter is before this Court. 5. Learned counsel for the appellant submitted that there was no previous occasion for him during the course of the trial to put any question with regard to comparison of data as the CFSL expert had clearly taken a stand that he had not submitted any report with regard to the comparison of the two sets of data. It was submitted that the comparison of the two sets of data was the main essence of the complaint and without the same, the trial itself would be reduced to a farce. 6. He further submitted that the courts erred in reckoning the delay counting it from the date of first lodging of the complaint though the same should have been considered from the date the cause of action arose i.e., on 20.08.2021, and the 3 application was filed on 25.08.2021. 7. Learned counsel for respondents no.2 to 9 submitted that the appellant is only indulging in dilatory tactics as he has every opportunity to make submissions, as he deems fit, during arguments which are yet to be concluded. Learned counsel further contented that the appellant cannot be, and should not be allowed to, fill up the lacunae left in the earlier round, at the current stage. 8. Learned counsel for the State joined the proceedings via video-conferencing. 1 9. Section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “CrPC”) has engaged this Court’s attention before. We will advert to a few decisions of recent vintage. While overturning an order of the High Court allowing an application for recall of a witness, which was rejected by the trial Court, this Court held as under, in Ratanlal v Prahlad Jat , (2017) 9 SCC 340: ‘ 17.In order to enable the court to find out the truth and render a just decision, the salutary provi- sions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-

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6 14 SCC 711 : (2009) 3 SCC (Cri) 244] , this Court has held as under: (SCC p. 719, para 38) “38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision pe- tition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Proced- ure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself a pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination- in-chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed.” ’ 10. In Manju Devi v State of Rajasthan , (2019) 6 SCC 203, this Court emphasized that a discretionary power like Section 311, CrPC is to enable the Court to keep the record straight and to clear any ambiguity regarding the evidence, whilst also ensuring no prejudice is caused to anyone. A note of caution was sounded in Swapan Kumar Chatterjee v Central Bureau of Investigation , (2019) 14 SCC 328 as under: ‘ 10.The first part of this section which is per- missive gives purely discretionary authority to the criminal court and enables it at any stage of in- quiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon 7 any person as a witness; or (ii) to examine any per- son in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, im- poses an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 11.It is well settled that the power conferred un- der Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exer- cised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further exam- ination, necessary in the interest of justice, but the same has to be exercised after taking into con- sideration 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. ’ 11. In Harendra Rai v State of Bihar , 2023 SCC OnLine SC 1023, a 3-Judge Bench of this Court was of the opinion that Section 311, CrPC should be invoked when ‘ … it is essential for the just decision of the case .’ 12. Having considered the matter and surveyed the law supra , the Court finds that a case for interference has been made out. Under the peculiar facts of the present case, the request was for recall of the appellant under Section 311, CrPC 8 justified, as at the relevant point of time in his initial deposition, there was no occasion for him to bring the relevant facts relating to similarity of data before the Court, which arose after the CFSL expert was examined. 13. Further, we find that if opportunity is given for re- examination, respondents no.2 to 9 will not be prejudiced as they will have ample opportunity to cross-examine the appellant. We have noted their apprehension apropos delay and issued appropriate direction infra . 14. In view of the above, the appeal is allowed. The orders of the Courts below are set aside. The application of the appellant under Section 311, CrPC for his recall to be further examined as a witness stands allowed. The same be done on a date to be fixed by the Trial Court, within six weeks from today. The trial will be brought to conclusion within 9 months from the date of receipt of this judgment. Pending applications are disposed of. …………………………………………………J. [AHSANUDDIN AMANULLAH] …………………………………………………J. [S.V.N. BHATTI] NEW DELHI AUGUST 29, 2023