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2012 DIGILAW 893 (PNJ)

Harinder Singh v. Muni Lal

2012-07-10

RAMESHWAR SINGH MALIK

body2012
JUDGMENT Mr. Rameshwar Singh Malik J.: (Oral) - The instant petition is directed against the order dated 09.03.2011 (Annexure P-4) passed by the learned Judicial Magistrate 1st Class, Fatehgarh Sahib, vide which the application moved by the petitioner under Section 311 Cr.P.C for summoning the record of Police Station Khamanon i.e.Register No.19 with regard to Ex.C-7, was dismissed. 2. Learned counsel for the petitioner vehemently contended that so far as the preparation of inventory (Annexure P-5) which is Ex.C-7 on the record of the learned trial Court, is concerned, there is no dispute that it was prepared by respondent No.4 Balwinder Singh ASI, who was posted at Police Station Khamanon at the relevant point of time. He further submits that once the preparation of inventory is admitted, it would be ascertained only from the perusal of Register No.19, whether this inventory was recorded by respondent No.4 in the police record i.e. Register No.19, meant for this purpose. Learned counsel for the petitioner also submits that no prejudice of any kind, whatsoever, is going to be caused to the respondents in case Register No.19 from Police Station Khamanon is summoned for the perusal of the Court. 3. Notice of motion was issued. 4. Learned counsel for the respondents, on the other hand, submits that so far as the inventory (Annexure P-5) is concerned, it is not denied. However, the stand taken by respondent No.4 is that he did not make any entry regarding this inventory in Register No.19 of the Police Station Khamanon. Learned counsel for the respondents further submits that in view of the above, no useful purpose would be served by summoning Register No.19 from Police Station Khamanon. 5. Be that as it may, it will be ascertained only from the perusal of Register No.19 whether respondent No.4 Balwinder Singh ASI, after preparing the inventory (Annexure P-5) made any entry in that record in Register No.19, or not. Learned counsel for the respondents could not point out as to what kind of prejudice is going to be caused to the respondents while summoning Register No.19. 6. Learned counsel for the respondents could not point out as to what kind of prejudice is going to be caused to the respondents while summoning Register No.19. 6. The question of law that falls for consideration of this Court is as to what is the scope and true import of Section 311 Cr.P.C. Section 311 Cr.P.C. reads as under: “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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case.” 7. A bare reading of the provisions of Section 311 Cr.P.C., reproduced above, leaves no room for doubt that its scope is very wide and true import is for advancing the cause of justice. It gives ample powers to the Court in this regard. 8. Section 311 Cr.P.C. came for interpretation before the Hon’ble Supreme Court in Mohanlal Shamji Soni Versus Union of India and another 1991 Supp (1) SCC 271. Observations made by the Hon’ble Supreme Court, in para 7, 8, 9 and 10 of this judgement, can be aptly followed and the same are as under: 7. Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading “Miscellaneous’. But the present corresponding Sections 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’. 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 Court 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. 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. 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 with-holds any evidence which could be produced and which, if produced, be unfavorable 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 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. 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. 9. The next celebrated judgement of the Hon’ble Supreme Court, on the scope of the powers of the Court under Section 311 Cr.P.C., is Zahira Habibullah Sheikh Versus State of Gujarat (2006) 2 SCC 374. 9. The next celebrated judgement of the Hon’ble Supreme Court, on the scope of the powers of the Court under Section 311 Cr.P.C., is Zahira Habibullah Sheikh Versus State of Gujarat (2006) 2 SCC 374. The Hon’ble Supreme Court, in paras No.23, 25 and 26 of the judgment, observed as under:- “It was significantly said the law, to be just and fair has to be seen devoid of flaw. It has to keep promise to justice and it cannot stay petrified and sit non-challantly. The law should not be seen to sit by limply, while those who defy it go free and those who seek its protection loose hope (See Jennison v. Backer, (1972)(1) AII ER 1006). Increasingly, people are believing as observed by SALMON quoted by Diogenes Laertius in “Lives of the Philosophers” laws are like spiders’ webs: if some light or powerless thing falls into them, it is caught, but a bigger one can break through and get away”. Jonathan Swift, in his “Essay on the Faculties of the Mind” said in similar lines:”Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.” Hon’ble Supreme Court laid down the law on the subject, in para 25 and 26 of the judgement, in the following terms:- 25. “The section is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequences, 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 any one as a witness, or (b) to examine any person present in 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 provision enabling, 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 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 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. 26. 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 supports the case for 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 Magistrates to issue summons to any witness at any stage of such proceedings, trial and enquiry. In Section 311 the significant expression that occurs is “at any stage of 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.” 10. The observations made by the Hon’ble Supreme Court, in para 29 and 37 of the judgment, are also very relevant and the same are as under:- 29. “Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The observations made by the Hon’ble Supreme Court, in para 29 and 37 of the judgment, are also very relevant and the same are as under:- 29. “Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences. 37. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stagemanaged, tailored and partisan trial. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.” 11. The law laid down by the Hon’ble Supreme Court in the judgment referred above, has been reiterated in long series of judgements, at later points of time, including in the cases of Iddar and Others Versus Aabida and another, [2007(3) Law Herald (SC) 2305] : (2007) 11 SCC 211 , Godrej Pacific Tech. Limited Versus Computer Joint India Limited, [2008(3) Law Herald (P&H) 2238 (SC)] : (2008) 11 SCC 108 and Hanuman Ram Versus State of Rajasthan and others, [2008(6) Law Herald (SC) 4146] : (2008) 15 SCC 652 . 12. Having heard learned counsel for the parties and after going through the record of the case, this Court is of the considered opinion that the impugned order dated 09.03.2011 (Annexure P-4) passed by the learned Judicial Magistrate 1st Class, Fatehgarh Sahib, is not sustainable in law for more than one reasons, to be recorded hereinafter. 13. 12. Having heard learned counsel for the parties and after going through the record of the case, this Court is of the considered opinion that the impugned order dated 09.03.2011 (Annexure P-4) passed by the learned Judicial Magistrate 1st Class, Fatehgarh Sahib, is not sustainable in law for more than one reasons, to be recorded hereinafter. 13. Firstly, it is an admitted position on record that respondent No.4 prepared the inventory of the articles in the form of document Ex.C-7 which is appended as Annexure P-5 to this petition. Secondly, it is only the relevant official record in the form of Register No.19 of Police Station Khamanon, the perusal whereof shall be the determining factor whether respondent No.4 has made the requisite entry about the inventory (Ex.C-7) in Register No.19. Thirdly, the rules of procedure are hand-maids of justice and are meant to be followed for advancing the cause of justice. It is the settled proposition of law that nobody should be forced to go home with the impression that he was not granted due opportunity to prosecute or defend his case. 14. After giving my thoughtful consideration to the contentions raised by the learned counsel for the parties and in view of the peculiar facts and circumstances of the present case, this Court is of the considered opinion that no prejudice is going to be caused to the respondents in case the official record of Police Station Khamanon in the form of Register No.19 is summoned for perusal of the Court. On the other hand, it will facilitate the learned trial Court to arrive at a judicious conclusion, thereby serving the ends of justice. 15. In the totality of the facts and circumstances of the present case noted above, coupled with the reasons aforementioned, the impugned order dated 09.03.2011 (Annexure P-4) passed by the learned Judicial Magistrate 1st Class, Fatehgarh Sahib, is hereby set aside. The application (Annexure P-2) moved by the petitioner under Section 311 Cr.P.C. is allowed as prayed. Law will take its own course. The learned trial Court is directed to proceed further, in accordance with law. 16. Resultantly, the present petition stands allowed. ---------0.B.S.0------------