- (1.) THE petitioners are undergoing a trial for the offence punishable under Section 302 Indian Penal Code, inter-alia. During the course of that the trial court recorded statements of PW-4 Preetam Singh on 6.5.2010. On the same day and also on 31.5.2010 cross examination of the witness aforesaid was made in detail. On completion of cross examination the trial court permitted the public prosecutor for re- examination of witness reserving right for further cross examination. Because of paucity of time, the re- examination could not be made on 31.5.2010. On 26.8.2010, the public prosecutor did not choose to re- examine the witness. On the same day an application was filed by the witness himself seeking his re- examination on the count that while deposing earlier he was under pressure of the family of the deceased. An application was also filed on the same day by the present petitioners as per provisions of Section 311 Cr.P.C. for recalling and re-examination of witness PW-4 Preetam Singh. THE trial court under the order dated 5.10.2010 rejected the applications, thus, these misc. petitions are preferred to question correctness of the order aforesaid.
(2.) IT is submitted by counsel for the petitioners that as per provisions of Section 311 Cr.P.C. the trial court is empowered to summon and re- examine a person, if his evidence appears to it, to be essential to just decision of the case, but in the instant matter the trial court instead of examining the fact that whether recalling and re-examination of PW-4 Preetam Singh was essential to just decision of the case, rejected the application being failed to assess that whether earlier statements given by the witness concerned were under pressure or the desire made by him for re-examination is under pressure. While claiming to recall the witness for a fair trial and to reach at a just decision reliance is placed by learned counsel upon the judgment of Hon'ble Supreme Court in Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors., 2004 SCC (Cri) 999. In the case aforesaid Hon'ble Apex Court held that the power of a trial court under Section 311 Cr.P.C. is neither to help the prosecution nor the defence, but to control the proceedings effectively so that the ultimate objective i.e. truth is arrived at, may be 3 achieved. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishful or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts should not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness. According to learned counsel, in the instant matter the accused himself preferred an application supported by an affidavit that his statements earlier recorded were under pressure and also that the public prosecutor at the first instance at his own made a request for reexamination of the witness but did not choose to avail the permission granted to do so, therefore, reexamination of the witness shall be necessary to arrive at a just decision. Learned Public Prosecutor as well as learned counsel for the complainant while opposing the petitions submitted that the statements of PW-4 Preetam Singh were recorded on 6.5.2010, detailed cross examination was made on the same day and subsequent thereto on 31.5.2010. The witness prior to 4 26.8.2010 never came forward with assertion that the statements given by him were under pressure or duress. The court also nowhere observed or felt any pressure or any kind of abnormal behaviour on the part of witness, while recording his statements. It is asserted that as a matter of fact the accused persons successfully won over the witness and, therefore, the subsequent application was filed to recall him for reexamination.
(3.) HEARD learned counsel for the parties. The scope of provisions of Section 311 Cr.P.C. is well defined. Hon'ble Supreme Court in the case of Mohanlal Shamji Soni v. Union of India and another, AIR 1991 SC 1346, while examining scope of provisions of Section 311 Cr.P.C. held as under:- "6.Before adverting to the arguments advanced on behalf of the appellant, we would examine in general the scope and intent of Section 540 of the old Code (corresponding to Section 311 of the new Code). 7.Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading 'Miscellaneous'. But the present corresponding Section 311 of the new Code is found among other Sections in Chapter XXIV under the heading 'General Provisions as to 5 Enquiries and Trials'. Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words 'to be' before the word 'essential' occurring in the old Section. This section is manifestly in two parts. Whereas the word used 'in the first part is 'may' the word used in the second part is 'shall'. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it at 'any stage of enquiry, trial or other proceedings' under the Code to act in one of the three ways, namely, (1)to summon any person as a witness, or (2)to examine 'any person in attendance, though not summoned as a witness, or (3)to recall and re-examine any person, already examined. 8.The second part which is mandatory imposes an obligation on the Court- (1)to summon and examine, or (2)to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 9.The very usage of the words such as, any Court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any' person' and any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should 6 be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. 10.It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence' to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is 7 well accepted and settled principle that a Court must discharge its statutory "functions whether discretionary or obligatory according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected' to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. 11.There are various other provisions in the new Code corresponding to the provisions of the old Code empowering the Court specified therein to recall any witness or witnesses already examined or summon any witness, if it is felt necessary in the interest of justice at various stages mentioned in the concerned specific provisions." In Mishrilal & Ors. v. State of M.P. & Ors., (2005)10 SCC 701, Hon'ble Supreme Court observed inter-alia, as follows:- "Once the witness was examined-in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW 2 Mokam Singh on 6-2-1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or for some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses." In the instant matter, true it is, that the accused himself moved an application for his re-examination and on basis of that the accused persons (the petitioners) also desired for recalling and re-examination of the witness, but that, in itself is not adequate to exercise powers given under Section 311 Cr.P.C. These powers are always required to be exercised cautiously and only on arriving at the conclusion that such recalling and re-examination is necessary for just decision. The trial court in the instant case recorded statements of PW-4 Preetam Singh on 6.5.2010. A very detailed cross examination was made on the same day and subsequent thereto on 31.5.2010. Nothing was said by the witness regarding any kind of pressure said to be exerted on him by family of the deceased, prior to 26.8.2010. The trial court also nowhere observed and noticed any abnormality in behaviour of the witness while recording his statements. The application submitted by the applicant is also available on record from perusal of that it does not reveal as to when and how the alleged pressure was exerted. The application as well as the affidavit given by the witness are quite vague. The trial court examined the application submitted by the witness as well as by the accused persons and did not choose to give any finding as to whether any pressure was ever exerted upon the witness, reached at a definite conclusion that recalling and re-examination of witness is not necessary for just decision. The obvious consequence 10 is that the statements earlier given by the witness PW-4 Preetam Singh were found sufficient by the trial court for arriving at a just decision. It is also relevant to mention here that quite fair and reasonable opportunity was accorded to the petitioners to rebut the evidence brought on record against them and that was availed by them and as such now recalling and re-examination of PW-4 Preetam Singh is rightly held by the trial court as unwarranted. I do not find any wrong with the order impugned that may warrant interference of this Court while exercising powers under Section 482 Code of Criminal Procedure. ;