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2014 DIGILAW 1127 (HP)

Sidheswar Enterprises v. Deekay Motors

2014-08-23

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, J. 1. Since both the petitions raise common question of law and facts, therefore are being collectively taken up for disposal. 2. The petitioner is aggrieved by the order dated 19.5.2014 passed by the learned Chief Judicial Magistrate, Mandi whereby its application under Section 91 read with Section 311 Cr. P.C. for summoning the witnesses has been dismissed by according the following reasons:- "3. I have heard the Ld. Counsel for the parties and have also perused the case file. From the perusal of the case file, it transpires that the accused have examined one witness in defence and thereafter the case was listed for documentary evidence and last opportunity was granted to the accused. From the perusal of the record, it also transpires that thereafter accused filed an application under Section 45 of the Indian Evidence Act read with Section 311A of the Cr. P.C. which was dismissed on 11.12.12. Thereafter the case was listed for documentary evidence if any and for final arguments. The accused on 6.1.2014 has filed the instant application. The accused have not shown any relevancy of the witnesses with the present complaint. Moreover, the accused has neither demanded any copy of record from the complainant nor he can ask for alleged copies. Therefore, the present application is not maintainable, hence dismissed." 3. The petitioner has sought summoning of three witnesses allegedly to corroborate the defence already taken. 4. The learned counsel for the petitioner has strenuously argued that Section 311 Cr. P.C. has to be liberally construed and is intended to arm the Judge with the most extensive power possible for the purpose of getting at the truth. He further contends that the very object of a trial is common, first to ascertain truth by the light of reason, and then, do justice upon the basis of the truth and here the Judge is not only justified but is required to elicit a fact, wherever the interest of truth and justice would suffer, if he did not do so. 5. In support of his submission, he has relied upon the judgment of learned Single Judge of the Delhi High Court in Inderjeet Kaur Kalsi vs. NCT of Delhi and another, 2014 (1) DCR 223 which has extensively dealt with the provisions of Section 311 Cr. P.C. in the following manner:- "7. Section 311 Cr. 5. In support of his submission, he has relied upon the judgment of learned Single Judge of the Delhi High Court in Inderjeet Kaur Kalsi vs. NCT of Delhi and another, 2014 (1) DCR 223 which has extensively dealt with the provisions of Section 311 Cr. P.C. in the following manner:- "7. Section 311 Cr. P.C. empowers the Court to summon any material witness if his evidence appears to be essential for the just decision of the case. Section 311 Cr. P.C. is intended to arm the Judge with the most extensive power possible for the purpose of getting at the truth. 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." 8. The object of a trial is, first to ascertain truth by the light of reason, and then, do justice upon the basis of the truth and the Judge is not only justified but required to elicit a fact, wherever the interest of truth and justice would suffer, if he did not. 9. The Judge is not a mere umpire at a wit-combat between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost. He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or wilfully avoided. A Judge, who at the trial merely sits and records evidence without caring so to conduct the examination of the witnesses that every point is brought out, is not fulfilling his duty. 10. A Judge, who at the trial merely sits and records evidence without caring so to conduct the examination of the witnesses that every point is brought out, is not fulfilling his duty. 10. In Rajeswar Prasad Misra vs. State of West Bengal, AIR 1965 SC 1887 , the Supreme Court dealt with the ample power and jurisdiction vested in the court, with respect to taking additional evidence, and observed, that it may not be possible for the legislature to foresee all situations and possibilities and therefore, the Court must examine the facts and circumstances of each case before it, and if it comes to the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered, and if such an action on its part is justified, then the Court must exercise such power. The Court held as under:- "10. Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial." 11. In Jamatraj Kewalji Govani vs. State of Maharashtra, AIR 1968 SC 178 , the Supreme Court held that Section 165 of the Indian Evidence Act and Section 540 of the Code of Criminal Procedure, 1898 confer jurisdiction on the Judge to act in aid of justice. In criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. 12. In Mohanlal Shamji Soni vs. Union of India, 1991 Supp. 12. In Mohanlal Shamji Soni vs. Union of India, 1991 Supp. (1) SCC 271, referring to Section 165 of the Indian Evidence Act and Section 311 of the Code of Criminal Procedure, the Supreme Court stated that the said two sections are complementary to each other and between them, they confer jurisdiction on the Judge to act in aid of 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. The Court further held as under:- "27. The criminal court has ample power to summon any person as a witness or recall and reexamine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case." 13. In P. Chhaganlal Daga vs. M. Sanjay Shaw, (2003) 11 SCC 486, the appellant completed the evidence including his own examination, cross-examination and re-examination in a prosecution launched under Section 138 of the Negotiable Instruments Act, 1881. During such cross-examination, the respondent-accused contested the service of statutory notice and disowning the signature contained in the acknowledgment card produced by the complainant. After completion of evidence, the case was posted for judgment when the complainant sought the permission of the Court to produce additional material i.e. a postal receipt. The grant of such permission by the Trial Court was held to be within the powers of the Court under Section 311 Cr. P.C. The Supreme Court held as under:- "2. It is very unfortunate that the High Court by the impugned judgment has interfered with an order passed by a trial Magistrate permitting the complainant to produce a document though at the fag end of the trial. 3. In a prosecution launched by the appellant under Section 138 of the Negotiable Instruments Act, the appellant completed the evidence including his own examination, cross-examination and re-examination. 3. In a prosecution launched by the appellant under Section 138 of the Negotiable Instruments Act, the appellant completed the evidence including his own examination, cross-examination and re-examination. During such cross-examination the respondent-accused contested the question of service of notice envisaged under Section 138 of the Negotiable Instruments Act. The acknowledgement card produced by the complainant contained a signature which the accused disowned as his. After the arguments concluded and the case was posted for judgment the complainant moved the trial court for reception of additional material (by producing a postal receipt) in exercise of the powers under Section 311 of the Code of Criminal Procedure. The trial court felt that the said material was necessary for the just decision of the case and hence allowed the same to come on record. The said order of the trial Magistrate was challenged by the accused before the High Court. 4. In the impugned judgment a learned Single Judge of the High Court held that production of the postal receipt at the said belated stage was only to fill up the lacuna and hence the same is impermissible in law. He, therefore, interfered with the order passed by the trial court and permission to produce the postal receipt was countermanded. Learned Single Judge has stated the following regarding that aspect:- "After the trial is over, if the petitioner is permitted to produce the postal receipt, that would only prejudice the right of the accused. Further, the postal receipt is sought to be produced only to fill up the lacuna or letting in corroboration of the evidence, if any, available regarding this aspect. I consider that the respondent cannot be allowed to adopt such a course." 5. In Rajendra Prasad vs. Narcotic Cell, (1999) 6 SCC 110 , this Court has explained what is meant by lacuna in the prosecution case. The following passage of the said decision will be apposite in this contest: (SCC p. 113, para 7) "7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not fill the lacuna in the prosecution case. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not fill the lacuna in the prosecution case. A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage „to err is human is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up." 6. In deciding so, this Court has taken into account some of the earlier decisions of this Court including Mohanlal Shamji Soni vs. Union of India, 1991 Supp (1) SCC 271. In the said decision this Court had observed that the power to receive evidence in exercise of Section 311 of the Code could be exercised even if evidence on both sides is closed and such jurisdiction of the Court is dictated by the exigency of the situation and fair play. The only factor which should govern the court in exercise of powers under Section 311 should be whether such material is essential for the just decision of the case. Even a reading of Section 311 of the Code would show that Parliament has studded the said provision lavishly with the word any at different places. This would also indicate the widest range of power conferred on the court in that matter. It is so stated by this Court in Ram Chander vs. State of Haryana, (1981) 3 SCC 191." (Emphasis supplied) 14. In Shailendra Kumar vs. State of Bihar, (2002) 1 SCC 655 , the Supreme Court discussed the scope and applicability of Section 311 Cr. P.C. and held as under:- "11. Bare reading of the aforesaid section reveals that it is of a very wide amplitude and if there is any negligence, laches or mistakes by not examining material witnesses, the court's function to render just decision by examining such witnesses at any stage is not, in any way, impaired. P.C. and held as under:- "11. Bare reading of the aforesaid section reveals that it is of a very wide amplitude and if there is any negligence, laches or mistakes by not examining material witnesses, the court's function to render just decision by examining such witnesses at any stage is not, in any way, impaired. This Court in Rajendra Prasad vs. Narcotic Cell, (1999) 6 SCC 110 observed:- "After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." 15. In Zahira Habibulla H. Sheikh vs. State of Gujarat, (2004) 4 SCC 158 , the Supreme Court held that Section 165 of the Indian Evidence Act and Section 311 Cr. P.C. confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. The Judge can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 Cr. P.C. 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 Courts to examine a witness if his evidence appears to be essential to the just decision of the Court. 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 the 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 the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. Though justice is depicted to be blind-folded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administering justice and not to ignore or turn the mind/attention of the Court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings. 16. In Zahira Habibullah Sheikh vs. State of Gujarat, (2006) 3 SCC 374 , the Supreme Court extensively discussed the nature, scope and object of Section 311 Cr. P.C. and held as under:- "26. The section is manifestly in two parts. Whereas the word used in the first part is may, the second part uses shall. In consequence, 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 anyone as a witness, or (b) to examine any person present in the 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 not 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. It is not 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. 27. 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 of 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 the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is at any stage of any 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. 28. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation – it is that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short the Evidence Act) are based on this rule. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short the Evidence Act) are based on this rule. 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 side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be filling of loopholes. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. 30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the 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." (Emphasis supplied) 17. In U.T. of Dadra and Nagar Haveli vs. Fatehsinh Mohansinh Chauhan, (2006) 7 SCC 529 , the Supreme Court held that the power of the Court to summon material witness under Section 311 Cr. P.C. can be exercised only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case. The Supreme Court held as under:- "15. P.C. can be exercised only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case. The Supreme Court held as under:- "15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr. P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the Court to arrive at a just decision of the case cannot be dubbed as filling in a lacuna in prosecution case unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused resulting in miscarriage of justice." (Emphasis supplied) 18. In Vijay Kumar vs. State of U.P. (2011) 8 SCC 136 , the Supreme Court summarized the nature, scope and object of Section 311 Cr. P.C. The Supreme Court laid down the principles for exercise of discretionary power under Section 311 Cr. P.C. and explained the complementary nature of the power of the Court under Section 165, Evidence Act, to its power under Section 311 Cr. P.C. which confers jurisdiction on the Court to act in aid of justice. The Supreme Court held as under:- "13. This Section consists of two parts, viz. (1) giving discretion to the court to examine the witness at any stage and (2) the mandatory portion which compels a court to examine a witness if his evidence appears to be essential to the just decision of the case. The Section enables and in certain circumstances, imposes on the Court the duty of summoning witnesses who would have been otherwise brought before the Court. This Section confers a wide discretion on the Court to act as the exigencies of justice require. The power of the Court under Section 165 of the Evidence Act is complementary to its power under this Section. These two sections between them confer jurisdiction on the Court to act in aid of justice. 14. This Section confers a wide discretion on the Court to act as the exigencies of justice require. The power of the Court under Section 165 of the Evidence Act is complementary to its power under this Section. These two sections between them confer jurisdiction on the Court to act in aid of justice. 14. There is no manner of doubt that the power under Section 311 of Code of Criminal Procedure is a vast one. This power can be exercised at any stage of the trial. Such a power should be exercised provided the evidence which may be tendered by a witness is germane to the issue involved, or if proper evidence is not adduced or relevant material is not brought on record due to any inadvertence. It hardly needs to be emphasized that power under Section 311 should be exercised for the just decision of the case. The wide discretion conferred on the court to summon a witness must be exercised judicially, as wider the power, the greater is the necessity for application of the judicial mind. Whether to exercise the power or not would largely depend upon the facts and circumstances of each case. As is provided in the Section, power to summon any person as a witness can be exercised if the court forms an opinion that the examination of such a witness is essential for just decision of the case. 17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said Section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the Court and not arbitrarily or capriciously." 19. In Natasha Singh vs. CBI, (2013) 5 SCC 741 , the Supreme Court discussed the scope and object of Section 311 of the Code of Criminal Procedure, 1973 and held that the discretionary power of the Court should be exercised judiciously and not arbitrarily so as to enable the Court to determine the truth and render a just decision. The Supreme Court held as under:- "8. Section 311 Cr. The Supreme Court held as under:- "8. Section 311 Cr. PC empowers the court to summon a material witness, or to examine a person present at any stage of any enquiry, or trial, or any other proceedings under Cr. PC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, Cr. PC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. 15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr PC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr PC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as any court, at any stage, or any enquiry, trial or other proceedings, any person and any such person clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case." (Emphasis supplied) 20. In Rajaram Prasad Yadav vs. State of Bihar, AIR 2013 SC 3081 , the Supreme Court laid down the following principles under Section 311 Cr. PC:– "(a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? (b) The exercise of the widest discretionary power under Section 311 Cr. P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. (c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person. (d) The exercise of power under Section 311 Cr. P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. (d) The exercise of power under Section 311 Cr. P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. (e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. (f) The wide discretionary power should be exercised judiciously and not arbitrarily. (g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. (h) The object of Section 311 Cr. P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision. (i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. (j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. (k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. (l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. (l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. (m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. (n) The power under Section 311 Cr. P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right." 6. There is no quarrel with the exposition of law extracted and enunciated in the aforesaid decision. But the question is whether the same applies to the fact situation obtaining in the present case. 7. Now, I would advert to the application preferred by the petitioner under Section 91 read with Section 311 of Cr. P.C. for summoning the witnesses to produce the record, the relevant portion whereof reads as follows:- "2. That the following witnesses with record are required to be summoned to corroborate the defence already taken by the accused and previously also no opportunity as such granted to him (accused) to examine the said record. 3. That the record sought was not supplied to the applicant/accused by the concern authorities on the plea, the same can only be produced in the court by the order of the Hon’ble Court, hence the applicant is submitting the instant application. 4. The following witnesses alongwith record may kindly be summoned:- (i) The accountant of M/s Deekay Motors Gutkar, Mandi may be summoned for production of account books pertaining to the period from 2004 to 2010 of motorcycles and scooties alongwith their receipts/bills chassis No. and engine No. purchased by M/s Sidheswar Enterprises. 4. The following witnesses alongwith record may kindly be summoned:- (i) The accountant of M/s Deekay Motors Gutkar, Mandi may be summoned for production of account books pertaining to the period from 2004 to 2010 of motorcycles and scooties alongwith their receipts/bills chassis No. and engine No. purchased by M/s Sidheswar Enterprises. (ii) Record Keeper/Officer from Income Tax Office, Mandi may be summoned for production of record of income tax returns and balance sheets filed/submitted by M/s Deekay Motors, Gutkar, Mandi from the year 2004 to 2010. (iii) Officer/dealing hand from the State Bank of Patiala, Mandi may be summoned for production of account statement of M/s Deekay Motors, Gutkar, Mandi from year 2004 to 2010. 5. That the said record is very essential and necessary and if, the said record is not examined the applicant/accused is likely to suffer an irreparable loss. An affidavit duly attested is attached herewith. It is, therefore, prayed that the above said record may kindly be summoned in the equity, just decision of the case and in the interest of justice." 8. What would be seen from the application (supra) is that the petitioner has though sought summoning of the three witnesses as mentioned in the application, but has not at all cared or made an endeavour to show as to how the evidence of these witnesses would be essential to the just decision of the case. Though, indisputably wide discretion is conferred upon this Court to act as the exigencies of justice require, but then the discretion so conferred is to be exercised judiciously. The Court is required to be armed with some material which may facilitate this Court to arrive at a conclusion that evidence of the witness appears to be essential for the just decision of the case because the determinative fact in such a case is as to whether the summoning of the witnesses is essential to the just decision of the case. In absence of any such material, I have no option but to uphold the order of the Court below though for entirely different reasons. 9. Accordingly, there is no merit in these petitions and the same are dismissed, leaving the parties to bear their own costs. Interim order dated 21.6.2014 stands vacated.