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2003 DIGILAW 1352 (PNJ)

Maharaja Singh v. State Of Haryana

2003-09-25

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under Section 401 of the Code of Criminal Procedure, 1973 (for brevity, Cr.P.C.) challenges order dated 15.9.2003 passed by the Additional Sessions Judge, Faridabad dismissing the application of the accused petitioner to recall two prosecution witnesses, namely, Mahender Singh and Hari Dutt alias Hari Singh for their further cross-examination in case FIR No. 164 dated 18.7.1999 registered under Sections 304-B/34, IPC at Police Station Chhninsa. The application has been dismissed on the ground that their statements recorded on 14.12.2000 and 9.4.2001 respectively abundantly show that both the witnesses were cross-examined by the accused-petitioner and no objection has ever been raised for a period of about 2 years. The plea of the accused petitioner that certain more questions remain to be confronted to those witnesses has been rejected by holding that it is merely a ploy to delay the proceedings. 2. Mr. Vinay Vohra, learned Counsel for the petitioner has argued that under Section 311, Cr.P.C. the Court is clothed with wide powers to recall any witness for the purpose of re-examination or further cross-examination. According to the learned Counsel further cross-examination of the aforementioned witnesses has become essential in view of the fact that statement of one Attar Singh, brother of deceased Bimla was recorded on 17.3.2003 who had contradicted the prosecution version and the facts mentioned in the aforementioned statement were not in their knowledge. Therefore, the power under Section 311, Cr.P.C. should have been exercised by the learned Trial Court. 3. After hearing the learned Counsel, I am of the considered opinion that this petition is liable to be dismissed because the statement made by one Attar Singh, brother of deceased Bimla does not disclose any new fact. The only fact mentioned in his statement by Attar Singh is that he had never made a statement to the police accusing the petitioner for demanding Rs. 15,000/- as dowry or harassing her. Even Section 311, Cr.P.C, contains a salutary provision that in cases where the evidence of a witness appears to be essential to the just decision of the case, the Court must recall such a witness for the purposes of re-examination, cross-examination or for further examination. Section 311, Cr.P.C. reads as under: "311. 15,000/- as dowry or harassing her. Even Section 311, Cr.P.C, contains a salutary provision that in cases where the evidence of a witness appears to be essential to the just decision of the case, the Court must recall such a witness for the purposes of re-examination, cross-examination or for further examination. Section 311, Cr.P.C. reads as under: "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 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." 4. A perusal of above section shows that a discretion has been conferred on the Court to summon any person as a witness. However, an obligation is cast in case the Court records the conclusion that for just, decision of the case, it is essential to recall, re-examine or cross-examine any other witness. The provisions has come up for consideration before the Supreme Court in the case of Mohanlal Shamji Soni v. Union of India and Anr, 1991 Supp (1) SCC 271. The following interpretation has been given by Their Lordships to Section 311, Cr.P.C. : "The very usage of the words such as any Court, "at any stage, or "of any inquiry, trial or other proceedings, "any person and "any such person clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and 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 sides. Xxx xxx xxx xxx xxx xxx It is well accepted and settled principle that a Court must discharge its statutory functions--whether discretionary or obligatory--according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the statutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." 5. It has also been observed by the Supreme Court in the case of Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178, that the requirement of just decision does not limit the action which may be in the interest of accused only but it may equally benefit the prosecution. However, the basic object is to fathom the truth, Therefore, the paramount consideration is to arrive at a just decision of the case. If on application of that principle, the recalling of a witness for further cross-examination is considered essential, then the Court is obliged to examine that power. 6. However, the basic object is to fathom the truth, Therefore, the paramount consideration is to arrive at a just decision of the case. If on application of that principle, the recalling of a witness for further cross-examination is considered essential, then the Court is obliged to examine that power. 6. The facts of the present case when examined in the light of the principles laid down by the Supreme Court in the above referred judgments do not show any element which may constitute that basis to conclude that it was essential to recall the witnesses for further cross-examination for just decision of the case. Nothing extraordinary has been stated by Attar Singh on the basis of which further cross-examination of the witnesses has been sought. The view taken by the learned Additional Sessions Judge in the impugned order does not suffer from any legal infirmity. The application filed by the accused petitioner appears to delay the conclusion of the trial. Therefore, this petition is liable to be dismissed. 7. For the reasons recorded above, this petition fails and the same is dismissed.