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2017 DIGILAW 718 (HP)

Piar Singh v. Dishant Constructions

2017-06-27

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. Being aggrieved with the order dated 6.1.2017 passed by learned Judicial Magistrate 1st Class (Junior Division), Mandi in case No.84-1/2011, whereby application having been filed by the petitioner-accused under Section 311 of the Code of Criminal Procedure (hereinafter referred to as the ‘Cr.P.C.’) came to be dismissed, petitioner-accused has approached this Court by way of instant petition filed under Section 482 Cr.P.C. praying therein for setting aside the aforesaid impugned order. 2. Briefly stated facts, as emerged from the record, are that the respondent-complainant filed a complaint under Section 138 of the Negotiable Instrument Act, in the Court of learned trial Court against the present petitioner-accused, alleging therein that the petitioner-accused in order to discharge his liability on account of debt towards the respondent-complainant, issued a cheque bearing No.942861, dated 15.11.2010, amounting to Rs.3,80,000/- drawn on Punjab National Bank, Bharmour (Chamba) Branch in favour of respondent-complainant. Since cheque referred above came to be dishonoured on its presentation, respondent-complainant served statutory demand notice on the petitioner calling upon him to make the payment good within stipulated time. Since petitioner-accused failed to make payment good, respondent-complainant was constrained to file complaint under Section 138 of the Negotiable Instrument Act. 3. Learned trial Court taking note of preliminary evidence adduced on record by the complainant, put notice of accusation on the petitioner under Section 138 of the Negotiable Instrument Act, which he pleaded not guilty and claimed trial. It also emerged from the record that respondent-complainant in support of his complaint himself stepped into witness box as a sole witness and evidence of respondent-complainant was closed on 20.9.2014, whereafter petitioner-accused led his evidence and the same was also closed on 13.7.2016. Subsequently, on 11.8.2016 petitioner filed an application under Section 311 Cr.P.C. praying therein for summoning and examining bank official from the Kangra Central Cooperative Bank Limited Manali Branch, as a witness. 4. Perusal of application preferred under Section 311 Cr.P.C. suggests that since respondent-complainant during his cross-examination stated that cheque amount was given to the petitioner-accused after withdrawing the same from his saving bank account in Kangra Central Cooperative Bank Limited Manali Branch, petitioner-accused by way of aforesaid application made a prayer that he may be allowed to examine official of Kangra Central Cooperative Bank as a witness. 5. 5. On the other hand, respondent-complainant opposed aforesaid prayer of petitioner-accused and sought dismissal of application on the ground that the application has been filed at a belated stage solely with a view to fill up the lacuna. 6. Learned trial Court vide order dated 6.1.2017 dismissed the aforesaid application filed by the accused on the ground that allowing of application at this stage would amount to filling up of lacuna, if any, which has crept in the defence set up by the accused. Learned Court below, on the basis of record, also concluded in the impugned order that complainant has himself stepped into witness box as a sole witness to support his complaint and it has come in his cross-examination that he had withdrawn the money given to accused from his account in Kangra Central Cooperative Bank, Chamba and as such onus was rather upon complainant to lead evidence to establish that he had withdrawn the money from his account in Kangra Central Cooperative Bank, Manali Branch. 7. Mr. Malay Kaushal, learned counsel representing the petitioner, while inviting attention of this Court to Section 311 Cr.P.C., vehemently contended that impugned order passed by learned trial Court is not sustainable as the same is not in consonance with the provisions contained in Section 311 Cr.P.C. wherein it has been provided 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. Bare perusal of the aforesaid provision suggests that the Court enjoys the vast powers of summoning, recalling any witness at any stage of proceedings, if his/her evidence appears to be essential for just decision of the case. 9. Mr. Kaushal further contended that impugned order passed by learned trial Court is harsh and oppressive and no prejudice, whatsoever, would have caused to opposite party, in case learned trial Court had allowed the petitioner-accused to examine the concerned bank official, rather it would have aided in bringing the real controversy to the fore between the parties. 9. Mr. Kaushal further contended that impugned order passed by learned trial Court is harsh and oppressive and no prejudice, whatsoever, would have caused to opposite party, in case learned trial Court had allowed the petitioner-accused to examine the concerned bank official, rather it would have aided in bringing the real controversy to the fore between the parties. He further contended that if the mandatory part of Section 311 Cr.P.C. is read, the paramount consideration of Court should be of doing justice to the case and Court can and ought to examine witness at any stage and if it results in filling up of lacuna or loopholes then in that situation it is a subsidiary factor. 10. Mr. Suneet Goel, learned counsel representing the respondent-complainant, while opposing the aforesaid submissions having been made by learned counsel representing the petitioner-accused, contended that there is no illegality and infirmity in the impugned order dated 6.1.2017 and as such same deserves to be upheld. Mr. Goel further contended that it is an admitted case of the parties that evidence of respondent was closed on 20.9.2014 and thereafter petitioner led his evidence which was also closed on 13.7.2016. 11. Mr. Goel further contended that petitioner-accused, solely with a view to delay the proceedings, filed an application under Section 311 Cr.P.C. that too just two months before closing his evidence and perusal of application filed under Section 311 Cr.P.C. nowhere suggests that any explanation worth the name has been/was rendered in the same qua inordinate delay in maintaining the application for examining the bank official of Kangra Central Cooperative Bank. Mr. Goel further contended that since this application was hopelessly time barred and there was no explanation for delay, learned Court rightly dismissed the same. He further stated that acceptance of prayer having been made by the petitioner-accused in the application at this stage would have certainly amounted to filling up of lacuna, which has definitely crept in the defence set up by the accused and as such impugned order dated 6.1.2017 passed by learned trial Court deserves to be upheld. While concluding his arguments, Mr. While concluding his arguments, Mr. Goel contended that though perusal of Section 311 Cr.P.C. clearly suggests that Court may, at any time, summon any person as a witness, or recall and re-examine any such person, provided that the same is necessary, for proper decision of the case, but this power is required to be exercised sparingly and with circumspection. 12. I have heard learned counsel for the parties and gone through the record of the case. 13. Before ascertaining the merits of the submissions having been made by learned counsel representing the respective parties vis-à-vis impugned order passed by the learned trial Court, it would be profitable to take note of Section 311 Cr.P.C., which clearly suggests that the Court may, at any time, summon any person as a witness, or recall and re-examine any witness provided that same is essentially required for just decision of the case, and judgments passed by Hon’ble Apex Court in Mannan SK and others vs. State of West Bengal and another AIR 2014 SC 2950 , wherein the Hon’ble Court has held as under:- “10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and reexamine already examined witness. The second part of the Section uses the word ‘shall’. It says that the court shall summon and examine or recall or reexamine any such person if his evidence appears to it to be essential to the just decision of the case. The words ‘essential to the just decision of the case’ are the key words. The court must form an opinion that for the just decision of the case recall or re- examination of the witness is necessary. Since the power is wide it’s exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The court must form an opinion that for the just decision of the case recall or re- examination of the witness is necessary. Since the power is wide it’s exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine.” 14. Hon’ble Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another, (2013)14 SCC 461 , has held that powers under Section 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case. It may be profitable to take note of the following paras of the judgment:- “14. A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”. By using the said expression “any” as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such reexamination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and reexamined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution. 15. In this context, we also wish to make a reference to certain decisions rendered by this Court on the interpretation of Section 311 Cr.P.C. where, this Court highlighted as to the basic principles which are to be borne in mind, while dealing with an application under Section 311 Cr.P.C. 15.1 In the decision reported in Jamatraj Kewalji Govani vs. State of Maharashtra, AIR 1968 SC 178 , this Court held as under in paragraph 14:- “14. It would appear that in our 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. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.” (Emphasis added) 15.2 In the decision reported in Mohanlal Shamji Soni vs. Union of India and another, 1991 Suppl.(1) SCC 271, this Court again highlighted the importance of the power to be exercised under Section 311 Cr.P.C. as under in paragraph 10:- “10….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 reexamine 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.” 15.3 In the decision in Raj Deo Sharma (II) vs. State of Bihar, 1999 (7) SCC 604 , the proposition has been reiterated as under in paragraph 9:- “9. 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. 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 five-Judge Bench in A.R. Antulay case nor in Kartar Singh case 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. 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.” (Emphasis added) 15.4 In U.T. of Dadra and Nagar Haveli and Anr. vs. Fatehsinh Mohansinh Chauhan - 2006 (7) SCC 529 , the decision has been further elucidated as under in paragraph 15:- “15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 CrPC 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 the 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) 15.5 In Iddar & Ors. vs. Aabida & Anr., AIR 2007 SC 3029 , the object underlying under Section 311 Cr.P.C., has been stated as under in paragraph 9:- “9...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 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 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 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.” (Emphasis added) 15.6 In P. Sanjeeva Rao vs. State of A.P., AIR 2012 SC 2242 , the scope of Section 311 Cr.P.C. has been highlighted by making reference to an earlier decision of this Court and also with particular reference to the case, which was dealt with in that decision in paragraphs 20 and 23, which are as under:- “20. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC 430 . The following passage is in this regard apposite: “6. ...In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.” 23. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.” 23. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-inchief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.” (Emphasis in original) 15.7 In a recent decision of this Court in Sheikh Jumman vs. State of Maharashtra, (2012) 9 Scale 18, the above referred to decisions were followed. 16. Again in an unreported decision rendered by this Court dated 08.05.2013 in Natasha Singh vs. CBI (State) – Criminal Appeal No.709 of 2013, where one of us was a party, various other decisions of this Court were referred to and the position has been stated as under in paragraphs 15 and 16: “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. 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.P.C. 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. The power conferred 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 great caution and circumspection. The very use of words such as ‘any Court’, ‘at any stage’, or ‘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. 16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, under no circumstances can a person’s right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376 ; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 3114 ; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367 ; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258 ; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136 ; and Sudevanand v. State through C.B.I. (2012) 3 SCC 387 .)” 17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts: 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 and 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.” 15. Hon’ble Apex Court in Zahira Habibullah Sheikh (5) and another vs. State of Gujarat and others (2006)3 SCC 374 has held as under:- “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 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 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 inquiry or trial or other proceeding under this Code". The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers 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 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 Indian Evidence Act, 1872 (in short, '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. 29. The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. 29. The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross- examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant. These aspects were highlighted in Jamat Raj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178 . 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 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. 31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as "one of the ablest judgments of one of the ablest judges who ever sat in this court," Vice-Chancellor Knight Bruce said : "The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however, valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination. Truth, like all other good things, may be loved unwisely may be pursued too keenly - may cost too much." The Vice-Chancellor went on to refer to paying "too great a price .... for truth". The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination. Truth, like all other good things, may be loved unwisely may be pursued too keenly - may cost too much." The Vice-Chancellor went on to refer to paying "too great a price .... for truth". This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: "The evidence has been obtained at a price which is unacceptable having regard to the prevailing community standards." 32. Restraints on the processes for determining the truth are multi-faceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. By the traditional common law method of induction there has emerged in our jurisprudence the principle of a fair trial. Oliver Wendell Holmes described the process: "It is the merit of the common law that it decides the case first and determines the principles afterwards ..... It is only after a series of determination on the same subject-matter, that it becomes necessary to "reconcile the cases", as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step." 33. The principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation - peculiar at times and related to the nature of crime, persons involved - directly or operating behind, social impart and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system. 34. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the law of evidence. 34. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the law of evidence. There is, however, an overriding and, perhaps, unifying principle. As Deane, J. put it: "It is desirable that the requirement of fairness be separately identified since it transcends the context of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law." 35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affect the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. The Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 36. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. 37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny. 38. 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 stage-managed, tailored and partisan trial. 39. 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.” 16. After having carefully perused the provision contained in Section 311 Cr.P.C. as well as aforesaid exposition of law, it is ample clear that Court has vast power to summon a witness or recall or re-examine any witness at any stage of trial provided the same is necessary for the just and proper decision of the case. But, Hon’ble Apex Court, while holding above, has further observed that the words ‘essential to the just decision of the case’ are the key words and in this regard, the court must form an opinion that for the just decision of the case, whether it is necessary to recall or reexamine the witness or not. 17. Hon’ble Apex Court has further held that power is wide and as such its exercise has to be with circumspection. Otherwise, also it is well settled that wider the power greater is the responsibility on the courts which exercise it and exercise of such power cannot be untrammeled and arbitrary, rather same must be only guided by the object of arriving at a just decision of the case. 18. Otherwise, also it is well settled that wider the power greater is the responsibility on the courts which exercise it and exercise of such power cannot be untrammeled and arbitrary, rather same must be only guided by the object of arriving at a just decision of the case. 18. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In the instant case, as clearly emerged from the record, the statement of sole respondent-complainant was recorded before 20.9.2014, whereas application under Section 311 Cr.P.C., was filed on 11.5.2016 i.e. approximately after two years. There is no explanation worth the name in the aforesaid application with regard to inordinate delay in maintaining the application and as such learned trial Court rightly came to the conclusion that allowing of application at this stage would amount to sheer abuse of process of law. 19. Leaving everything aside, perusal of impugned order dated 6.1.2017 clearly suggests that delay, if any, on account of the petitioner in maintaining the application was not sole factor, which weighed with the trial Court while dismissing the application, rather learned trial Court taking note of the admission made by the respondent-complainant in his cross-examination that he had withdrawn the money given to the accused from his account in Kangra Central Cooperative Bank, categorically observed in the impugned order that onus was upon the complainant to lead evidence to establish the said fact. No doubt petitioner, in law, is entitled to get opportunity to examine bank official from Kangra Central Cooperative Bank Branch Manali, from where allegedly respondent-complainant withdraw the money from his account for paying the same to the petitioner-accused, but since aforesaid statement/admission was made approximately two years back, petitioner-accused ought to have filed application immediately after recording of statement of respondent. 20. 20. In the instant case, sole reason, as given by the petitioner-accused for moving the aforesaid application, is the statement/admission having been made by the respondent-complainant during his cross-examination that cheque amount was given to the petitioner-accused after withdrawing the same from his saving bank account in the Kangra Central Cooperative Bank, which otherwise is/was required to be proved by respondent-complainant by leading cogent and convincing evidence and as such learned Court rightly held that onus, if any, to establish that money was withdrawn by respondent-complainant from his account in Kangra Central Cooperative Bank Branch Manali is/was upon the respondent-complainant not upon the petitioner-accused. 21. Hon’ble Apex Court in Mannan SK’s case supra has observed that words “essential to the just decision of the case” are the key words and in this regard Court, keeping in view of all circumstances, needs to form an opinion, whether for the just decision of the case recall or re-examination is necessary or not. In the instant case, learned Court taking note of the fact that onus is/was upon the complainant to prove that he had withdrawn money from Kangra Central Cooperative Bank, formed an opinion that statement/examination of officer of the Kangra Central Cooperative Bank as sought by petitioner-accused may not be necessary for arriving at just decision. It is well settled that onus to prove allegations is always upon the person who alleges the same. 22. Consequently, in view of the detailed discussion made hereinabove as well as law laid down by Hon’ble Apex Court, as has been taken into account above, this Court sees no illegality and infirmity in the impugned order passed by learned trial Court and the same is, accordingly, upheld. As a consequence, present appeal is dismissed.