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2004 DIGILAW 1205 (PNJ)

Mahavir v. State Of Haryana

2004-10-29

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This petition filed under Section 401 of the Code of Criminal Procedure, 1973 (for brevity, `Cr.P.C) prays for quashing order dated 1.10.2004 passed by the Additional Sessions Judge, Rewari reversing the order dated 10.1.2002 of Additional Chief Judicial Magistrate, Rewari. The revision petition was allowed by holding that the application for adducing additional evidence under Section 311 Cr.P.C. filed by the complainant through public prosecutor was liable to be accepted. By way of additional evidence, Dr. Ashok Rathi and Dr. Ved Paul have been permitted to be summoned with relevant record bearing RC No. 958686 with a view to prove the report given by the Radiologist, PGIMS, Rohtak dated 31.10.1996 and discharge slip issued by Dr. Rajendra Prasad Centre of Ophthalmic, New Delhi with regard to injured Hoshiar Singh who is said to have lost his one eye. The learned Additional Sessions Judge has also found that the additional evidence was necessary to be adduced for just decision of the case. 2. Brief facts of the case are that FIR No. 279 of 1996 under Sections 324/34 IPC, Police Station Daruhera has been registered against the petitioners and they are facing trial. During the trial, prosecution evidence has been recorded and is closed. Thereafter, the complainant through the public prosecutor filed an application under Section 311 Cr.P.C. for summoning of Dr. Ashok Rathi and Dr. Ved Paul with relevant record bearing RC No. 958676. The application was dismissed by the trial Court at Rewari on the ground that the case was at the stage of defence evidence and there is huge delay. It has further been observed that the accused-petitioner cannot keep suffering the agony of criminal trial due to negligence of the prosecution and the permission to adduce additional evidence if granted at this belated stage would tantamount to start of de novo trial. 3. On revision preferred before the learned Additional Sessions Judge, Rewari, order passed by the trial court has been set aside by holding that the Court is competent to summon and re-examine any witness at any stage under Section 311 Cr.P.C as long as it is felt that such a course would serve the interest of justice. Feeling aggrieved, the petitioners have approached this Court. 4. Mr. Feeling aggrieved, the petitioners have approached this Court. 4. Mr. Ajai Tewari, learned counsel for the petitioners has argued that on proper exercise of discretion, the trial Court has rightly dismissed the application and the same cannot now be allowed by the learned Additional Sessions Judge in exercise of jurisdiction under Section 397 Cr.P.C. The learned counsel has also argued that once the evidence of the prosecution has been closed, then it amounts to reviewing its own order by the Magistrate. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Hari Singh v. State of Haryana, 2002(2) RCR (Criminal) 316 and further argued that the power under Section 311 Cr.P.C. is not to be exercised to permit filling up of lacuna in the case of the prosecution to the disadvantage and prejudice of the accused-petitioners. 5. After hearing the learned counsel, I am of the considered view that the impugned order passed by the learned Additional Sessions Judge deserves to be upheld. It may be appropriate to make a reference of Section 311 Cr.P.C. which 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." 6. The aforementioned provision has been subject matter of consideration of the Supreme Court in numerous cases. Reference in this regard may be made to the view taken by the Supreme Court in the cases of Mohanlal Shamji Soni v. Union of India, 1991(3) RCR(Crl.) 182 (SC) : 1991 Supp (1) SCC 271; Rajendra Prasad v. Narcotic Cell, 1996(6) SCC 110 and Zahira Habibulla H. Sheikh and others v. State of Gujarat and others, 2004(2) RCR(Crl.) 836 (SC) : 2004(4) SCC 158. Following its earlier judgment in Mohanlal Shamji Sonis case (supra), the Supreme Court in the case of Zahira Habibulla H. Sheikhs case (supra) has observed that power of the Court under Section 165 of the Evidence Act, 1872 is in a way complementary to its power under Section 311 Cr.P.C. and the object of the provision is to elicit all necessary material by playing an active role in the evidence collecting process and to enable the Court to arrive at the truth. Holding that Section 311 Cr.P.C. consists of two parts, their Lordships observed as under :- "44. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. : (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, "any court", "at any stage", or "any enquiry or trial or other proceedings", "any person" and "any such person" clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers 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 any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, "essential" to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the Court to arrive at the truth irrespective of the fact that prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. Object of the section is to enable the Court to arrive at the truth irrespective of the fact that prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth." 7. It is, thus, obvious that once the Court records the conclusion that the additional evidence is just and fair to conclude the trial and reach the truth, then it is mandatory to examine the evidence proceed. Although, the first part of Section 311 Cr.P.C. gives a wide discretion to the Court to examine any witness at any time before pronouncement of the judgment which has to be exercised with caution. In the present case, the two doctors are sought to be produced in Court who have examined the complainant injured. The photostat copy of the report of a Radiologist of PGIMS, Rohtak dated 31.10.1996 and photostat copy of the discharge slip issued by Dr. Rajendra Prasad Centre for Ophthalmic Sciences, New Delhi has been placed on record along with the application under Section 311 Cr.P.C. The aforementioned documents would show that there is no possibility of any concoction and the doctors are to appear and make statements on the basis of record. It has been found by the learned Additional Sessions Judge that it is essential for just decision of the case that the aforementioned two doctors, namely, Dr. Ashok Rathi and Dr. Ved Paul be summoned and examined. Therefore, the case falls under the mandatory provisions of Section 311 Cr.P.C. 8. The argument of the learned counsel based on the judgment of this Court in Hari Singhs case (supra) has not impressed me because in that case, the Court has reached the conclusion that the discretion under Section 311 Cr.P.C. should not be exercised to fill in the lacuna left in the version of the prosecution by permitting adducing of additional evidence. That case was covered by the first part of the provisions of Section 311 Cr.P.C. and not by the second part. That case was covered by the first part of the provisions of Section 311 Cr.P.C. and not by the second part. In view of the above, this petition fails and the same is dismissed.