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2002 DIGILAW 605 (PNJ)

Pritam Singh v. State Of Punjab

2002-05-29

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. The petitioner seeks quashing of the order dated 11.3.2002 vide which Judicial Magistrate Ist Class, Moga had allowed the prayer of the prosecution to produce documentary evidence under Section 311 of the Coder of Criminal Procedure, 1973 (hereinafter referred to as the Code). 2. For the adjudication of the present petition a few facts need to be noticed. A case bearing FIR No. 141 dated 25.9.1997 under Sections 447 and 379 reads with Section 34 of the Indian Penal Code was registered against the petitioner-accused. After completion of the investigation, challan was put in Court. The prosecution evidence was completed on 27.11.2001. On that very day Gurbachan Singh, complainant filed an application under Section 311 of the Code, which was allowed and the prosecution was permitted to produce on record the copy of the injunction order dated 24.5.1997, copy of order dated 10.9.1997, copy of order dated 23.1.1998, copy of report dated 10.8.2000 of Halqa Patwari, Bagha Purana and Khasra girdawris from 1996 to 2001 on the ground that these being public documents were per se admissible and the authenticity of these documents was not in doubt. It was observed that production of these documents was necessary for the proper and effective adjudication of the case. At the same time, prayer for production of copy of agreement dated 2.5.1995, original agreement dated 2.5.1997 and copy of power of attorney dated 21.2.1994 was declined. Aggrieved by the order dated 11.3.2002 passed by the Judicial Magistrate Ist Class, Moga, this petition has been filed. 3. I have heard counsel for the petitioner at length. Learned counsel, while challenging the legality of the order dated 11.3.2002 passed by the Judicial Magistrate Ist Class, Moga, mainly contended before me that this order does not fall within the ambit of the provision of Section 311 of the Code because provision of Section 311 of the Code envisages only summoning of witnesses though already examined or recall or re-examine witnesses who had already been examined but in the present case no witness had been sought to be examined to probe these documents such a prayer would not be covered under this provision. 4. In order to appreciate the submissions made, the provisions contained in Section 311 of the Code has to be noticed which read as under :- "311. 4. In order to appreciate the submissions made, the provisions contained in Section 311 of the Code has to be noticed which read as under :- "311. Power to summon material witness, or examine person presenital :- 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." 5 It is manifest from the above provision that the power of summoning any person as witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined has to be in relation to the evidence which appears to the Court to be essential for the just decision of the case. The evidence has been defined in Section 3 of the Indian Evidence Act, 1872 as under :- "Evidence" - Evidence means and includes - (1) All statements which the Court permit or require to be made before it by witnesses in relation to matters of fact under enquiry : such statements are called oral evidence; (2) All documents produced for the inspection of the Court; such documents are called documentary evidence." 6. Therefore, in view of the above definition of the word "evidence" used in Section 311 of the Code leads to the conclusion that oral as well as documentary evidence to be led can be allowed to be produced by the Court in exercise of the power vested under Section 311 of the Code. At the same time, it needs to be noticed that the section consists of two parts. In the first part the word may has been used while in the second part the word shall has been used. Consequently, where the case is covered under the first part, the discretion is left with the Court to grant permission to lead evidence under these provisions to either of the parties whereas where the case is covered under the second part, a mandatory duty is cast on the Court to get the evidence produced which is essential for the just decision of the case. Therefore, this section is couched in the widest possible terms and the power vested in the court can be exercised at any stage taking into account the facts and circumstances on record. 7. During the course of arguments, it was not disputed by the counsel for the petitioner that in a given case the Court can allow production of document where it feels that production of such document would be essential for just decision of the case. The only objection taken by him is that documents should be produced by a witness who should be summoned to produce the document in terms of the requirement of Section 311 of the Code because these provisions do not envisage production of documents without summoning a witness to prove the same and as in this case no witness has been ordered to be summoned by the learned Magistrate and the documents consisting of orders of the Court, copies of the revenue record have been allowed to be produced by exercising the power under Section 311 of the Code, such a course would be impermissible under the law. 8. There is hardly any merit in the submission made. Summoning of a witness to produce these documents and then get these proved would not only entail delay when documents are per se admissible and can be tendered in evidence without formal proof but would also incur unnecessary expense for the party whose prayer is allowed to produce the evidence in terms of the power vested in the Court. If the construction put by the counsel for the petitioner- accused is accepted that would be doing violence to the provision of Section 311 of the Code which has been engrafted by the Parliament for advancement of the criminal justice system. Section 311 of the Code should not be construed in such a manner which would render these provisions as non-workable in a situation like the present one. The construction to these provision should be put in such a manner which would advance the cause of justice and not defeat it. It is for that reason the Courts have taken into consideration that where the language of the statute leads to manifest contradiction in the purpose of the enactment, the Court would adopt a construction which would carry out the intention of the Legislature. It is for that reason the Courts have taken into consideration that where the language of the statute leads to manifest contradiction in the purpose of the enactment, the Court would adopt a construction which would carry out the intention of the Legislature. In doing so as Denning, LJ., had said, "a Judge must not alter the material of which the Act is woven but he can and should iron out the creases." 9. In order to prevent manifest injustice being caused on account of non- production of material evidence in the trial of the case even the Appellate Court has been vested with the power to produce additional evidence in appeal during the pendency of the appeal under Section 391 of the Code. The scope of Section 391 of the Code is prima facie not limited by any consideration save that the Appellate court should be of the opinion that additional evidence is necessary and for doing so it is required to record reasons. The intention of the Legislature to empower the Appellate Court to permit production of additional evidence appears to be that cause of justice should not suffer and production of such evidence would enable the Court to come to a correct finding and for that reason it would be justified in permitting the additional evidence under these provisions. Therefore, provisions of section 311 of the Code have given ample powers to the Court to allow production of the evidence whether documentary or oral which is per se admissible without formal proof where the Court feels the same to be necessary for the just decision of the case and no fetters can be put in exercise of those powers as sought to be contended by the counsel for the petitioner. 10. For the aforesaid reasons, there is no merit in the petition and the same is consequently dismissed.