2008 (7) TMI 969

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....lenge was to the order passed by the learned Judicial Magistrate, Chandigarh, rejecting the application of the 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 fo....

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....) 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 prerogativ....

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.... 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....