Full Judgment Text
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CASE NO.:
Appeal (crl.) 544 of 2007
PETITIONER:
Rama Paswan & Ors.
RESPONDENT:
State of Jharkhand
DATE OF JUDGMENT: 13/04/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 544 2007
(Arising out of SLP (Crl) No.912 of 2006)
Dr. ARIJIT PASAYAT, J.
Leave granted.
Appellants call in question legality of the order passed by
a learned Single Judge of the Jharkhand High Court
dismissing the petition filed by the appellants.
Background facts in a nutshell are as follows:
Alleging that PW4 (hereinafter referred to as the victim)
was subjected to rape, attracting punishment under Section
376 of the Indian Penal Code, 1860 (in short the ’IPC’) First
Information Report (in short the "FIR’) was lodged by the
informant. The date of occurrence was stated to be 30.5.1992.
The charge sheet was filed on 29.9.1994. The examination of
witnesses after framing of charges continued from 1994 to
2004. After examination of several witnesses on 18.5.2004 the
trial court directed the production of further witnesses, if
any. Since no prosecution witness was present on 18.5.2004,
28.5.2004 and 10.6.2004, evidence of prosecution was closed.
On 16.6.2004 the statement of accused persons was recorded
under Section 313 of the Code of Criminal Procedure, 1973 (in
short the ’Code’). The evidence of the defence witnesses was
recorded between 25.6.2004 and 13.12.2004. Thereafter the
matter was placed for argument. At this stage an application
purported to be under Section 311 of the Code was filed for
recalling of the victim for further cross examination on the
ground that the parties have settled the dispute outside the
Court at the intervention of the well-wishers and also the
informant could not identify the persons who allegedly
committed the offence due to darkness. The trial court rejected
the application by order dated 1.4.2005. The trial court was of
the view that in view of the circumstances indicated it would
not be proper to allow the application of the accused for
recalling the victim. The same was accordingly dismissed. It
was noted that the case was pending for trial for more than
ten years. Application in terms of Section 482 of the Code was
filed before the High Court which was dismissed by the
impugned order. The High Court was of the view that the
compromise petition which was annexed to the petition under
Section 482 of the Code referred to purported compromise
between the parties. The High Court noted that Section 376 of
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IPC is not compoundable and when the victim was examined
and cross examined during trial, the prayer to recall the victim
is not acceptable. Accordingly the petition was rejected.
In support of the appeal, learned counsel for the
appellants submitted that when parties have settled the
disputes continuance of the proceeding would not be in the
interest of the justice and the High Court should have
exercised jurisdiction under Section 482 of the Code.
Learned counsel for the State on the other hand
supported the orders passed by the trial court and the High
Court.
The scope and ambit of Section 311 of the Code, which
reads as follows, needs to be noted:
"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 a 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 enabling provision, 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
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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 ( AIR 1968 SC 178).
Considering the ambit of Section 311 of the Code, it
does not appear to be a case where any interference is called
for. What is the effect of evidence already recorded shall be
considered by the trial court. Since Section 376 IPC is not
compoundable in terms of Section 320 of the Code, the trial
court and the High Court rightly rejected the prayer. We find
no scope for interference in the appeal. Our non-interference
shall not be construed as we have expressed any opinion on
the merits of the case.
The appeal is dismissed.