JUDGMENT Honble Vinod Prasad, J.—Pradeep Kumar Chaurasiya who is the informant of Crime No. 231 of 2004, under Sections 363, 365 and 364-A, IPC, P.S. Cantt. District Varanasi has preferred this Criminal Misc. Application with the prayer that order dated 12.4.2006 passed by Additional Sessions Judge/Fast Track No. 2 Varanasi in S.T. No. 758 of 2004 State v. Avadhesh and others be quashed. The aforesaid Sessions Trial is related with the aforesaid crime number. 2. The background facts of the case are that the father of the applicant Shiv Shankar Prasad was abducted on 10.5.2004 when he had gone for a morning walk at about 5 a.m. Regarding the said abduction a FIR was lodged on the same day at about 8.30 a.m. as Crime No. 231 of 2004 under Sections 363 and 365, IPC by the applicant at P.S. Cantt., district Varanasi. The investigation into the crime was engineered by the police and on 14.6.2004 the police party headed by S.O. P.S. Lanka, arrested the accused persons, namely; Avadhesh Yadav, Bachha Singh, Kandhari Yadav, Nagendra Pratap Singh and Kharpattu. From their possession illegal arms as well as ransom money to a tune of Rs. 32.44 lakhs were recovered from their possession which was paid to them for release of the abductee Shiv Shankar Prasad by the informant. The investigation into the crime resulted in charge-sheeting the accused persons on the basis of which they were summoned by the Magistrate and were committed to the Court of Sessions for trial. 3. During the pendency of the trial recovered amount was released in favour of the applicant by Chief Judicial Magistrate, Varanasi vide his order dated 24.7.2004 (Annexure 3). The said order was challenged before the Sessions Judge by the accused but they filed before the revisional Court also who confirmed the order of the Magistrate releasing the money in favour of the informant. However, this Court stayed the release of the said amount to the applicant informant vide its order dated 6.12.2004. 4. In the trial after the evidence of both the sides were over arguments were heard and the judgment was reserved by the trial Court. However, this Court stayed the release of the said amount to the applicant informant vide its order dated 6.12.2004. 4. In the trial after the evidence of both the sides were over arguments were heard and the judgment was reserved by the trial Court. After reserving the judgment trial Court found it necessary for a just and proper decision of the case that certain other witnesses, who were not mentioned in the charge-sheet, be examined and therefore, vide its impugned order dated 12.4.2006 it ordered for examination of Smt. Malti Devi, Punit Mehra (two witnesses who are connected with the agreement to sale of a house in which Rs. 65 lakhs were paid as agreement amount to know the source of ransom paid), Ram Chandra and Shitla Prasad (independent witnesses of recovery of ransom amount) and the investigating officer of the case. It also ordered for summoning of print out of mobile numbers as during investigation from electronic surveillance Mobile numbers were traced out which belonged to the accused. It also summoned Manager of the concerned person of Punit Auto Mobile along with the relevant papers. It ordered that the first five witnesses be summoned as a Court witnesses which order is under challenge in the instant Criminal Misc. Application. 5. I have heard Sri Manish Tiwari learned Counsel for the applicant and Sri J.S. Sengar learned Counsel for the respondent Nos. 2 to 6. With the permission of the Court respondents No. 2 to 6 were arrayed as a party in this Criminal Misc. Application by Sri Manish Tiwari learned Counsel for the applicant. Respondent No. 4 Nagendra Pratap Singh has filed counter-affidavit on behalf of the respondents in this case to which rejoinder affidavit has also been filed by Sri Manish Tiwari. 6. Learned Counsel for the applicant contended that the impugned order dated 12.4.2006 passed by the trial Court is absolutely illegal and deserves to be set aside. He further contended that source of income of money which has been paid by the informant applicant was wholly irrelevant for the purpose of deciding the charge against respondent accused and therefore, there was no need to examine any witness in that respect and hence the trial Court committed an illegality in ordering that Smt. Malti Devi and Punit Mehra be summoned. (It is relevant to note here that the ransom money was alleged to have been paid from the money received from agreement to sale of a house in which transaction Smt. Malti and Punit Mehra were involved as seller and purchaser in accordance with Ext. Kha 1. It is also relevant to mention here that other two witnesses Ram Chandra and Shitala Prasad were the witnesses of the recovery of ransom money. Sri Tiwari further submitted that so far as the witnesses of recovery are concerned, their evidence was also not essential for a just decision of case as they could not have dislodged the testimony of the informant PW 1 and that of the victim PW 3. Sri Manish Tiwari further submitted that Mobile Phone numbers are also wholly irrelevant as in any view of the matter the evidence of the informant P.W. 1 and that of the victim P.W. 3 is to be judged on the merits of their deposition given in the Court and therefore the trial Court had delayed the trial and it only resorted to the method which may help to the accused persons. Concludingly Sri Tiwari submitted that order of examination of five witnesses by the Court is absolutely illegal and cannot be sustained and must be quashed. 7. On the other hand Sri J.S. Sengar learned Counsel for the accused respondents submitted that trial Court had heard the arguments and had reserved the judgment. He further contended that while looking into the merits of the case, trial Court found that the evidence of five witnesses mentioned in the impugned order is necessary for a just and proper decision of the case and therefore, the trial Court has exercised its power under Section 311, Cr.P.C. by summoning those five witnesses under Section 311, Cr.P.C. Sri Sengar further submitted that one of the issue involved in this case is as to whether any ransom was paid to the accused person or not and whether the informant or his family members could be in possession of such a huge amount and therefore the trial Court felt it necessary to examine the seller and purchaser of the property from which 65 lakhs rupees were given and taken. He further submitted that two independent witnesses of recovery who were summoned by the trial Court as Court witness were also necessary because those witnesses could have proved the correctness of the recovery of ransom money alleged to have been made by the police from the possession of the accused. He further contended that so far as the I.O. is concerned, his evidence is essential for the purposes of judging whether the investigation was done fairly or not. He therefore submitted that the impugned order does not suffer from any illegality and deserves to be upheld. 8. I have given my anxious consideration on the rival contentions canvassed at bar by the rival sides and have gone through the material contained in this application. 9. In this case the allegation against the accused persons are that they had abducted the father of the applicant and had released him after getting ransom of Rs. 50 lakhs. Out of the said amount of ransom 34.44 lakhs is alleged to have been recovered from the possession of the accused persons. The trial Judge after reserving the judgment found it absolutely necessary to know the sources from where the money had been paid by the prosecution to come to a conclusion as to whether the said amount of Rs. 50 lakhs had in fact been paid or not and whether the informant was in a position to pay the said amount or not. The trial Court has mentioned that it is a sensitive case where a huge money is involved and before finally deciding the case it thought it fit to exercise its power under Section 311, Cr. P.C. for a just and proper decision of the case to come to a findings of guilty or innocence. In such a view, I am of the opinion that the power of the trial Judges under Section 311, Cr. P.C. cannot be set at naught. Section 311, Cr. P.C. has been engrafted in the statute book for salutary purposes of doing complete justice and come to a correct conclusion. The words used under that Section are not circumscribes within any limits. To arrive at the truth of the matter is the responsibility of the trial Judge. P.C. cannot be set at naught. Section 311, Cr. P.C. has been engrafted in the statute book for salutary purposes of doing complete justice and come to a correct conclusion. The words used under that Section are not circumscribes within any limits. To arrive at the truth of the matter is the responsibility of the trial Judge. If the trial Judge was not satisfied with the evidence led by the prosecution and wanted to take further evidence to Judge the guilty of the accused persons, his such an exercise of power under Section 311, Cr. P.C. cannot be said to be arbitrary, illegal or beyond jurisdiction. It is for the trial Judge to look into the prosecution and the defence evidence and other material to record a finding of acquittal or conviction. It is reminded that any unwarranted conviction or undesired acquittal both is abhorred by justice. There is no room for such a fault. From the impugned order also it is perceptibly clear that the trial Judge has given cogent and sufficient reason for exercising his powers under Section 311, Cr.P.C. 10. Further this Court should be slow in interfering with discretionary power of the trial Court in matters of taking additional evidence for a just and proper decision of the case and to separate the grain from the chaff. It is the responsibility of the trial Judge to unearth the truth. In this view if the trial Judge was of the opinion that the evidence of the five witnesses Smt. Malti Devi, Punit Mehra, Ram Chandra, Shitla Prasad and the I.O. are just and proper, I do not see any reason why he should be stopped from taking that evidence on record. 11. The scope of Section 311, Cr. P.C. has been considered by the apex Court in the case of Mohan Lal Sham Ji Soni v. Union of India, AIR 1991 SC 1346 . While detailing the scope of the aforesaid Section the Apex Court in para 6 to 11 of the aforesaid judgment has been pleased to observe thus : “6. Before adverting to the arguments advanced on behalf of the appellant, we would examine in general the scope and intent of Section 540 of the old Code (corresponding to Section 311 of the new Code). 7. Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading ‘Miscellaneous’. Before adverting to the arguments advanced on behalf of the appellant, we would examine in general the scope and intent of Section 540 of the old Code (corresponding to Section 311 of the new Code). 7. Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading ‘Miscellaneous’. But the present corresponding Section 311 of the new Code is found among other Sections in Chapter XXIV under the heading General Provisions as to Enquiries and Trials. Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words ‘to be’ before the word ‘essential’ occurring in the old Section. This Section is manifestly in two parts. Whereas the word used’ in the first part is ‘may’ the word used in the second part is ‘shall’. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it at any stage of enquiry, trial or other proceedings’ under the Code to act in one of the three ways, namely, (1) to summon any person as a witness, or (2) to examine ‘any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person, already examined. 8. The second part which is mandatory imposes an obligation on the Court— (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 9. The very usage of the words such as, any Court at any stage’, or of any enquiry, 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 to the just decision of the case. 10. 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 to the just decision of the case. 10. It is 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. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a 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. It is a 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 salutary 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 enquiry, 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 in attendance though not summoned as a witness or recall and 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. 11. There are various other provisions in the new Code corresponding to the provisions of the old Code empowering the Court, ecifled therein to recall any witness or witnesses already examined or summon any witness, if it is felt necessary in the interest of justice at various stages mentioned in the concerned specific provisions.” 12. The scope of Section 311, Cr. P.C. again came for consideration before the Apex Court in case of Rajdeo Sharma v. State of Bihar, AIR 1999 SC 3524 . In para 9 of the aforesaid judgment the Apex Court was pleased to observe thus : “We may observe that the power of the Court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the Seven-Judge Bench in A.R. Antulay’s case, 1992 AIR SCW 1872: AIR 1992 SC 1701 : (1992 Cri LJ 2717) nor in Kartar Singh’s case (1994 Cri LJ 3139), such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the Court under Section 311 of the Code. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the Court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the Court to be essential to the just decision of the case it is the duty of the Court to summon and examine or recall and re-examine any such person.” 13. The aforesaid Section also came up for consideration before this Court on many earlier occasions. In 1998 (2) ACC 573, Lakshmi Shanker v. State of U.P., it has been held as follows : “7. Section 311, Cr. P.C. permits a trial Court to take additional evidence at any stage of the trial. It has two distinct parts. In the first part, a discretion is given to the Court to summon any person or any witness or to examine any person in attendance or even to recall or re-examine a person already examined, but in the subsequent part it becomes the duty of the Court to summon and examine or recall and re-examine any person if the evidence of such person appear to the Court to be essential to the just decision of the case. In the instant case the Court below was satisfied about the relevancy of the X-ray places and, accordingly, it was necessary to examine certain more witnesses including the doctor. It is true that the High Court had fixed a time limit for conclusion of the trial, but disposal is not the only aim of a criminal trial a Court is to try to arrive at the truth and do justice between the parties. The time target fixed by the Court had already passed and notwithstanding the delay, it becomes incumbent upon the Court to examine a witness if his evidence appears to be essential to the just decision of the case. Looking from this angle, the order of the Sessions Judge dated 21.2.1998 may not be dubbed as illegal. The Sessions Judge was clearly aware of the delay in the proceeding and of the direction of the High Court given earlier.” 14. Looking from this angle, the order of the Sessions Judge dated 21.2.1998 may not be dubbed as illegal. The Sessions Judge was clearly aware of the delay in the proceeding and of the direction of the High Court given earlier.” 14. It has further been held by this Court in 1999 (1) ACC 648, Mohammad Shueb Asif v. State of U.P. and others, as follows : “It appears that the learned Sessions Judge needs to be reminded that under Section 311, Cr. P.C. a duty is cast upon the Sessions Court to examine such witnesses as are necessary for just decision of the case as Court witnesses irrespective of the fact whether such witnesses have been produced or not." 15. It has further been held in 1996 ACC 38, Shiv Kumar v. State of U.P. and others, as follows : “Section 311, Cr. P.C. enables the Court at any stage of any inquiry, trial or other proceeding under this Code to summon any person as a witness. The power has been conferred to satisfy the quest of the Court in order to do justice between the parties." 16. From the discussion made above and after going through the impugned order I find that the impugned order does not suffer from any infirmity of law and does not call for any interference by this Court. This Criminal Misc. Application is meritless and deserves to be rejected. 17. Present Criminal Misc. application is rejected. 18. Interim order dated 19.4.2006 as has been extended from time to time stands vacated. Since the trial is very old, the trial Court is directed to expedite the trial and make an endeavour to conclude the same if possible within four months from the date of the production of the certified copy of this order. ————