REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    1181         OF 2008 (Arising out of S.L.P. (Crl.) No. 6396 of 2006)

Godrej Pacific Tech. Ltd. …Appellant

Vs.

Computer Joint India Ltd. … Respondent

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned

Single Judge of the Punjab and Haryana High Court, rejecting

the  petition  filed  by  the  appellant.   Before  the  High  Court

challenge  was  to  the  order  passed  by  the  learned  Judicial

Magistrate,  Chandigarh,  rejecting  the  application  of  the

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appellant  seeking  re-examination  of  the  witnesses  already

examined  in  terms  of  Section  311  of  the  Code  of  Criminal

Procedure,  1973 (in short ‘Code’).

3. The application was rejected by the Trial Court primary

on the  ground that the complaint  was filed  on 19.12.1996.

The evidence  was closed on 11.3.2004.  Under Section 313

Cr.P.C. examination was over on 12.7.2004.  The High Court

concurred with the view of the Trial Court.    

4. In  support  of  the  appeal  learned  counsel  for  the

appellant  submitted  that  the  examination  in  chief  of  the

witness Shri Deepak Jotshi was done on 29.7.2003.   On that

particular  date,  the  counsel  for  the  accused  had  taken  an

objection that the applicants counsel  was asking misleading

questions.  Hence the trial Court had directed the witness to

give his statement and as a layman, he gave his statement.

But inadvertently he had not proved the relevant documents

i.e.  cheques,  cheque  returning  memos,  legal  notice,  courier

receipt,  letter from complainant bank, whereas, some of the

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above  said  documents  had  already  been  proved  by  other

witness, other than the complainant.            

5. Learned counsel for the respondents supported orders of

the court below.

6. In this context, reference may be made to Section 311 of

the Criminal Procedure 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.”

7. 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

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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. 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

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prepared to call witnesses who are known to be in a position

to speak important relevant facts.

8. 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

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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.  

9. 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. 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

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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.

10. The object of 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 the 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

provisions 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

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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  Jamatraj  Kewalji  Govani v.  State  of

Maharashtra (1967 (3) SCR 415).

11. The above position was highlighted in Zahira Habibullah

Sheikh & Anr. v. State of Gujarat & Ors. [(2006) 3 SCC 374].

12. In the background facts of the case we are of the view

that the trial court ought to have permitted the prayer of the

appellant. That being so, the rejection of the prayer by trial

court  was  not  proper  and  the  High  Court  should  not  have

declined to interfere.

12. The appeal  is allowed.  The Trial  Court shall  fix a date

within three months and call  the witnesses in question and

accord  opportunity  to  the  accused  persons  and  thereafter

proceed with the trial.  

…………………………….J.

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(Dr. ARIJIT PASAYAT)

       …………………………….J. (H.S. BEDI)

New Delhi, July 30, 2008

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