TaxTMI 
TaxTMI 
2018 (11) TMI 497
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....pondent on 02.05.2012 acknowledging his liability. It is after tracing the pronote the petitioner moved an application for production of the same, which as observed above, has been rejected by the learned Court below by concluding that the document, if allowed to come on record at this stage, will result in loss to the accused especially when he has disclosed his evidence. I have heard learned counsel for the parties and have gone through the material placed on record. 3. At the outset, this Court is firstly required to deal with the scope and ambit of Section 311 Cr.P.C. The provisions have been considered in detail by the Hon'ble Supreme Court in State of Haryana versus Ram Mehar and others (2016) 8 SCC 762, wherein the entire law on the subject was discussed in detail in the following manner:- "26. Having dwelled upon the concept of fair trial we may now proceed to the principles laid down in the precedents of this Court, applicability of the same to a fact situation and duty of the court under Section 311 CrPC. The said provision reads as follows:- "311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or othe....
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....ituations. 28. In the said authority the Court referred to the earlier pronouncements in Rameshwar Dayal and others v. State of Uttar Pradesh (1978) 2 SCC 518, State of West Bengal v. Tulsidas Mundhra 1963 Supp (1) SCR 1, Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178 and proceeded to opine that: (Mohanlal Shamji Soni Case21, SCC p.283, para 27) "27.The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case." (emphasis supplied) It is important to note here in the said case, it was also observed that: (SCC p.280, para 18) "18....Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stag....
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....s committed by the parties or to find out and declare who among the parties performed better." (emphasis supplied) 30. After so stating the two-Judge bench referred to the exigencies of the situation and the ample power of the court as has been laid in Mohanlal Shamji Soni (supra) and further referred to the authority in Jamatraj Kewalji Govani (supra) and opined thus (Rajendra Prasad case25, SCC p.114, para 12) "12.We cannot therefore accept the contention of the appellant as a legal proposition that the court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The steps which the trial court permitted in this case for resummoning certain witnesses cannot therefore be spurned down or frowned at." (emphasis supplied) 31. The aforesaid decision in Rajendra Prasad case has to be appropriately understood. It reiterates the principle stated....
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.... available to any court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and reexamination of any person already examined is concerned, the court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the court to be essential for the just decision of the case. The learned Judges further ruled that the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. It was also stated that while such a widest power is invested with the court, exercise of such power should be made judicially and also with extreme care and caution. 34. The Court referred to the earlier decisions and culled out certain principles which are to be kept in mind while exercising power under Section 311 CrPC. We think it seemly to reproduce some of them: (Rajaram Prasad case27, SCC pp. 473-74, para 17) "17.2. The exercise of the wi....
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.... and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right." (emphasis supplied) 35. Recently in Shiv Kumar Yadav (supra), the Court reproduced the principles culled out in Rajaram Prasad Yadav's case and thereafter referred to the authority in Hoffman Andreas (supra) wherein it has been laid down that: (Shiv Kumar Yadav case9, SCC p.416, para 14) "14...'6......The counsel who was engaged for defending the appellant had cross-examined the witnesses but he could not complete the trial because of his death. When the new counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In such circumstances, if the new counsel thought to have the material witnesses further examined the Court could adopt latitude and a liberal view in the interest of....
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....pra) and Fatehsinh Mohansinh Chauhan (supra). The High Court has opined that the court has to be magnanimous in permitting mistakes to be rectified, more so, when the prosecution was permitted to lead additional evidences by invoking the provisions under Section 311 CrPC. The High Court has also noticed that the accused persons are in prison and, therefore, it should be justified to allow the recall of witnesses. 37. The heart of the matter is whether the reasons ascribed by the High Court are germane for exercise of power under Section 311 CrPC. The criminal trial is required to proceed in accordance with Section 309 of the CrPC. This court in Vinod Kumar v. State of Punjab (2015) 3 SCC 220, while dealing with delay in examination and cross-examination was compelled to observe thus:(SCC pp. 226-27, para 1) "1.If one is asked a question, what afflicts the legally requisite criminal trial in its conceptual eventuality in this country the two reasons that may earn the status of phenomenal signification are, first, procrastination of trial due to non-availability of witnesses when the trial is in progress and second, unwarranted adjournments sought by the counsel conducting the tr....
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....aid authorities should not be construed to mean that Section 311 CrPC should not be allowed to have its full play. But, a prominent one, the courts cannot ignore the factual score. Recalling of witnesses as envisaged under the said statutory provision on the grounds that accused persons are in custody, the prosecution was allowed to recall some of its witnesses earlier, the counsel was ill and magnanimity commands fairness should be shown, we are inclined to think, are not acceptable in the obtaining factual matrix. The decisions which have used the words that the court should be magnanimous, needless to give special emphasis, did not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion. It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean "the liberal approach" shall be the rule and all other parameters shall become exceptions. Recall of some witnesses by the prosecution at one point of time, can never be ground to entertain a petition by the defence though no acceptable ground is made out. It is not an arithmetical distribution. This kind....
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....e exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order. 18. In Vijay Kumar v. State of Uttar Pradesh and Anr., (2011) 8 SCC 136: (2011 AIR SCW 6236), this Court while explaining scope and ambit of Section 311 has held as under:- "Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously". 19. In Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Others, (2006) 3 SCC 374: (AIR 2006 SC 1367), this Court has considered the concept underlining under Section 311 as under:- "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 w....
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....nquiry, trial or other proceedings 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 already examined, who is expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. Yet, this power has to be exercised only for strong and valid reasons that too with care, caution and circumspection. Recall is not a matter of course and the discretion given to the Court has to be exercised judicially to prevent failure of justice. 7. Bearing in mind the law propounded by the Hon'ble Supreme Court in aforesaid cases, it would be noticed that in the application filed by the petitioner under Section 311, it had been specifically pleaded that at the time of filing of the complaint the pronote executed by the respondent was not traceable and, therefore, sought permission of the court to produce the same. Now, the question whether the pronote, in fact, had been executed as a matter of trial, yet it needs to be noticed that in the agree....