REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO.               OF 2008 (Arising out of S.L.P. (Crl.) No.7382 of 2007)

Hanuman Ram …Appellant

Versus

The State of Rajasthan and Ors. …Respondents

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 the learned Single

Judge of the Rajasthan High Court, allowing the application filed by

respondent  nos.2  and  3.   The  said  respondents  had  questioned  the

correctness  of  the  order  dated  14.8.2007  passed  by  the  learned

Additional Sessions Judge, (Fast Track),  Parbatsar, rejecting the

application made by the accused in terms of Section 311 of the Code of

Criminal Procedure, 1973 (in short ‘Code’).

3. A brief reference to the factual aspects would suffice:

The respondent nos.2 and 3 are facing trial for the commission of

offences punishable under Sections 147, 452, 364, 302/149 and 201/149

of the Indian Penal Code, 1860 (in short ‘IPC’). Various witnesses

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were  examined  from  time  to  time  including  Nandaram  (PW-5)  and

Bhopalaram (PW-3). Nandaram was examined and cross-examined on 21st

November, and Bhopalaram was examined and cross-examined on 7th June,

2006.  One of the accused Shrikant was claimed to be a minor and

because of that he was tried before the Children’s Court.  In that

case also Bhopalaram was examined as a witness on 9th January, 2007.

In his evidence Bhopalaram did not support the prosecution version.

Similarly, Nandaram was examined before the Children’s Court sometime

in November, 2006. An application was filed by the accused persons

before the Trial Court in terms of Section 311 of the Code with the

prayer  that  Nandaram  and  Bhopalaram  may  be  re-summoned  for  cross-

examination with reference to their statements before the Children’s

Court.  The trial Court found the prayer to be not acceptable and

rejected the same. An application under Section 397 read with Section

401  of  the  Code  was  filed  before  the  High  Court  questioning  the

correctness of the order dated 14.8.2007 rejecting the application

made.  The High Court by its impugned judgment allowed the petition

and directed the court below to recall and re-examine Bhopalaram and

Nandaram.  The  High  Court  for  the  purpose  of  accepting  the  prayer

recorded as follows:

“In the present case, it is not in dispute that Bhopalaram  and  Nandaram  were  examined  as  prosecution witnesses before the Children Court, Ajmer and their testimony in that case is certainly relevant in the case relating to the petitioners. The reliability of the witnesses is required to be examined by the Court after hearing the arguments and at this stage it shall not  be  appropriate  to  apprehend  that  witnesses Bhopalaram and Nandaram would have been won over.  In the peculiar facts and circumstances of the case I am of considered opinion that the court below erred while rejecting the application preferred by the petitioners under  Section  311  Cr.P.C.  The  court  should  have recalled Bhopalaram and Nandaram for cross examination afresh by invoking powers under Section 311 Cr.P.C.”

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4. Learned counsel for the appellant submitted that the High Court

ought  to  have  accepted  the  prayer  as  made  because  the  parameters

governing Section 311 of the Code had no application to the facts of

the case.  Learned counsel for the State supported the stand of the

appellant.  Learned counsel for the respondent nos. 2 and 3 submitted

that ultimately the best evidence has to be brought on record for

doing justice and the High Court’s order, therefore, does not suffer

from any infirmity.

5. 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 if his evidence appears to it to be essential to the just decision of the case.”

6. The section is manifestly in two parts.  Whereas the word used in

the  first  part  is  “may”,  the  second  part  uses  “shall”.  In

consequences, 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 3

by  duty of examining a material witness who would not be 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 to call witnesses who are known to be in a

position to speak important relevant facts.          

7. 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,  enquires  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

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summoning  witnesses,  the  discretion  conferred  is  to  be  exercised

judiciously, as the wide the power the greater is the necessity for

application of judicial mind.

8. 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.

9. 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

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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 Ravi v. State of

Maharashtra (AIR  1968  SC  178),  Rama  Paswan  and  Ors. v.  State  of

Jharkhand (2007 (11) SCC 191) and  Iddar and Ors. v. Aabida and Anr.

(2007 (11) SCC 211).  

10. In  Mishralal and Ors. v.  State of M.P. & Ors. (2005 (10) SCC

701), this Court observed inter alia as follows:

“5. The learned counsel for the appellants seriously attacked the evidence of PW 2 Mokam Singh. This witness was  examined  by  the  Sessions  Judge  on  6.2.1991  and cross-examined on the same day by the defence counsel. Thereafter, it seems, that on behalf of the accused persons an application was filed and PW-2 Mokam Singh was  recalled.   PW-2  was  again  examined  and  cross- examined on 31.7.1991.  It may be noted that some of the  persons  who  were  allegedly  involved  in  this incident were minors and their case was tried by the Juvenile Court.  PW 2 Mokam Singh was also examined as a witness in the case before the Juvenile Court.  In the Juvenile Court, he gave evidence to the effect that he was not aware of the persons who had attacked him and on hearing the voice of the assailants, he assumed that they were some Banjaras.  Upon recalling, PW-2 Mokam Singh was confronted with the evidence he had given later before the Juvenile Court on the basis of which the accused persons were acquitted of the charge under Section 307 IPC for having made an attempt on the life of this witness.”                  6. In  our  opinion,  the  procedure  adopted  by  the Sessions Judge was not strictly in accordance with law. 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

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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 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.”

11. The  factual  scenario  in  Mishri  Lal’s case  (supra)  has  great

similarity with the facts of the present case.  The High Court’s view

for accepting the prayer in terms of Section 311 of the Code does not

have any legal foundation.  In the facts of the case, the High Court

ought not to have accepted the prayer made by the accused persons in

terms of Section 311 of the Code.  Above being the position, we set

aside the impugned order of the High Court.

12. The appeal is allowed accordingly.    

………………………………………………J. (DR. ARIJIT PASAYAT)

………………………………………………J. (J.M. PANCHAL)

New Delhi: October 13, 2008

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