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CASE NO.: Appeal (crl.)  934 of 2007

PETITIONER: Iddar & Ors.

RESPONDENT: Aabida & Anr.

DATE OF JUDGMENT: 25/07/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.    934         OF 2007 (Arising out of SLP (Crl.) No.1805 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Rajasthan High Court, Jaipur  Bench dated 20.2.2006 passed under Section 482 of the Code  of Criminal Procedure, 1973 (in short the ’Code’) and order  dated 2.3.2006 refusing to recall the said order i.e. 20.2.2006.

3.      Background facts need to be noted in brief.

       On 17.2.2005 the elder sister of the complainant lodged a  complaint before the police station alleging that she was  married to one Shri Sakeel. After sometime, the family of the  husband of her sister started demanding dowry and torturing  her.  When the complainant went to meet her sister, she saw  several wounds on her person.  It was stated that both sisters  were beaten and the complainant was raped by her family  members and friends of in-laws.  First Information Report (in  short the ’FIR’) was lodged for alleged commission of offences  punishable under Section 498A, 406 of the Indian Penal Code,  1860 in short the ’IPC’).  Since no case was found for  alleged  commission of offence punishable under Section 376 IPC, the  said offence was not registered.

4.      Another complaint was lodged on 24.4.2005 in respect of  the same alleged event in another police station where the  case was registered for alleged commission of offence under  Section 376 read with Section 120B IPC.  The appellants were  arrested and an application for bail was moved.  The High  Court rejected the bail application. According to the appellant  matter was amicably settled and the complainant appeared  before the trial court and her statement was recorded. Her  statement was at variance with the statement recorded during  investigation. Thereafter an application in terms of Section  311 of the Code was filed requesting for recording statement of  the complainant afresh.  This according to the appellants was  at the behest of some local persons and enemies of the  appellants.  The trial court by Order dated 13.1.2006 held that  it was a case where prosecution was trying to fill up lacunae of  prosecution version and it was rejected.

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5.      Respondent No.1 preferred application under Section 482  of the Code for setting aside the order of the trial court.

6.      On 20th February, 2006 the application was allowed.   Thereafter an application was filed to recall the said order as  no notice was issued to respondents in the petition. They also  filed an application to be impleaded. The High Court by order  dated 2.3.2006 rejected the application filed to recall the order  dated 20.2.2006.

7.      In support of the appeal, learned counsel for the  appellants submitted that the High Court’s orders cannot be  maintained because no reason has been indicated as to why  the order of the trial court rejecting the prayer in terms of  Section 311 of the Code was set aside.  It was also submitted  that since no notice has been issued to the appellants before  the order was passed, the High Court erroneously rejected the  prayer to recall the order.    

8.      Learned counsel for the respondent No.1 however  submitted that this is a case where the High Court’s order  cannot be faulted even though when the first order was passed  on 20th February, 2006, no notice had been issued to the  appellants. They had sought to be impleaded on their own  motion before the order rejecting the prayer for recalling the  order was passed.  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 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

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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. 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 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 Jagat Rai v. State of Maharashtra AIR 1968 SC  178.

14.     It is undisputed that the appellants were not heard  before the order dated 20.2.2006 was passed. A specific

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ground taken in application to recall the order was that even  no notice was issued and they were not impleaded as parties.   It appears to have been brought to notice of the High Court  that the appellants were heard before the trial court when the  application in terms of Section 311 of the Code was decided by  the trial court. It is true that the High Court has no power to  review/recall its order. But in view of the peculiar factual  scenario highlighted above, we set aside the order dated 20th  February, 2006. The petition filed by the respondent No.1  shall be heard on merits.   

15.     It is stated that the appellants have already been  impleaded in the application. If that is so, there shall be no  need of respondents being impleaded.  If it has not been done,  the same shall be done.  We make it clear that we do not  express any opinion on the merits of the case.     16.     Appeal is allowed.