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Madhya Pradesh High Court · body

2019 DIGILAW 548 (MP)

Pradeep Shivhare v. Yash Kumar Goyal

2019-07-29

S.A.DHARMADHIKARI

body2019
ORDER 1. At the outset, learned counsel for the petitioner submits that he does not wish to challenge the order dated 6.7.2019 in view of bar contained on Clause (7), Chapter 10 of High Court of Madhya Pradesh Rules, 2008. The petition is, accordingly, dismissed as not pressed in respect of order dated 6.7.2019 (supra). However, the petitioner shall be at liberty to assail the same in accordance with law. As such, arguments heard in respect of order dated 29.5.2018 passed by JMFC, Gwalior in Case No. 3380/2016 assailed in this petition, under section 482 of the Code of Criminal Procedure, whereby petitioner's application under section 311, CrPC for recross examination of the complainant has been rejected. 2. Learned counsel for the petitioner submits that the cheque given by the petitioner by way of security has been presented by the complainant on 19.4.2018 before the Bank after filling up an amount of Rs. 25 lacs thereon. However, cross-examination of the complainant was over on 4.1.2018. As such, this being a subsequent development, petitioner was not in a position to cross-examine the complainant on that count. It is also noteworthy that dispute between petitioner and the complainant has been going on for last two years and, therefore, it is highly improbable that under such circumstances a cheque of Rs. 25 lacs would have been given by the applicant to the complainant. It is, accordingly, submitted that rejection of application under section 311, CrPC seeking recross-examination of the complainant for the aforesaid reasons has resulted in miscarriage of justice. It is crystal clear that under section 311 of CrPC, the Court has been empowered to summon a witness at any stage of an inquiry, trial or other proceeding. The power is not confined to a particular class of persons. It is also settled in law that if all the conditions under this section are satisfied, the Court can call the witnesses not only on the motion of either prosecution or defence, but also it can do so on its own motion. It is further submitted that power of a Court to recall any witness or witnesses already examined or to summon any witness, can be invoked even if evidence of both sides is closed so long as the Court retains seisin of the criminal proceedings. 3. It is further submitted that power of a Court to recall any witness or witnesses already examined or to summon any witness, can be invoked even if evidence of both sides is closed so long as the Court retains seisin of the criminal proceedings. 3. Per contra, learned counsel for the respondent has supported the order passed by the trial Court and submits that the recorded therein being cogent, no interference is warranted therewith. 4. Heard, learned counsel for the parties. 5. The apex Court in the case of Iddar and others v. Aabida and another (JT 2007 (9) SC 552) has held as under : "9. In this context, reference may be made to section 311 of the Code which reads as follows: "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." 10. 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 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 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. 11. 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. 12. 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. 12. 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. 13. The object of the section 311is 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 Jagat Rai v. State of Maharashtra, AIR 1968 SC178. (Emphasis supplied) 6. 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 Jagat Rai v. State of Maharashtra, AIR 1968 SC178. (Emphasis supplied) 6. In the present case, recall is being sought on the basis of subsequent development i.e. presentation of cheque on 19.4.2018 by the complainant after closure of his evidence on 4.1.2018. The said fact goes to the root of the matter and may have a material bearing on the decision in the case. Therefore, with an object that no failure of justice is meted out to either of the parties, it would be appropriate to summon the complainant/respondent for further cross-examination. 7. Resultantly, the impugned order is set aside and the application under section 311 of the CrPC is allowed. Trial Court is directed to proceed from that stage in accordance with law. The petition, accordingly, stands allowed to the extent indicated above.