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2013 (7) TMI 1178
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....In the evening, as regards the construction of a latrine in his land in front of his house, a dispute arose as between him and his brother Bindeshwar Yadav and that at the instance of his brother Bindeshwar Yadav, his son Rajaram Yadav, brought a country made pistol and fired at the 2nd Respondent (PW-9) on the left side of the back, where after he was taken to the hospital for treatment. 5. At the instance of the second Respondent, based on a complaint dated 8.7.1999, a case in Crime No. 71 of 1999 was registered in Khizersarai Police Station for the offences punishable under Sections 324, 307 read with Section 34 Indian Penal Code, 1860 and also under Section 27 of the Arms Act, 1959. Investigation was held and an injury report was brought on record, in which the doctor opined that the injury was caused by a hard blunt substance and was single in nature. It was stated that the second Respondent (PW-9) was able to secure another report later on. 6. The Appellant was enlarged on bail on 13.10.1999. A charge sheet bearing No. 127 of 1999, dated 31.10.1999 was filed against the Appellant and the other accused for the offences under Sections 324, 307 read with 34 of Indian Penal Cod....
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.... 10. We heard Mr. Mohit Kumar Shah, learned Counsel for the Appellant and Mr. Gopal Singh, learned Counsel for the first Respondent and Mr. Amlan Kumar Ghosh, learned Counsel for the second Respondent. We also perused the order impugned, as well as the order of the trial Court and other material papers placed on record. 11. Mr. Mohit Kumar Shah, learned Counsel for the Appellant in his submission contended that while the trial Court passed a reasoned order after hearing both parties extensively, the Hon'ble High Court passed the impugned order in the absence of the Appellant. According to the learned Counsel, the second Respondent even without impleading the Appellant, persuaded the High Court to pass the impugned order, which according to the learned Counsel is on the face of it, not sustainable under Section 311 Code of Criminal Procedure learned Counsel further contended that by permitting the second Respondent to get himself re-examined, every attempt has been made to fill up the lacunae in the case of the prosecution, which the High Court ought not to have permitted. According to the learned Counsel, when the trial Court had examined the pros and cons, while dealing with....
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....e explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. 14. A conspicuous reading of Section 311 Code of Criminal Procedure would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefo....
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....other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction. (Emphasis added) 16. In the decision reported in Mohanlal Shamji Soni v. Union of India and Anr. 1991 Supp. (1) SCC 271, this Court again highlighted the importance of the power to be exercised under Section 311 Code of Criminal Procedure as under in paragraph 10: 10... In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted where under any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-exa....
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.... 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 appl....
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....sha Singh v. CBI (State) Criminal Appeal No. 709 of 2013, where one of us was a party, various other decisions of this Court were referred to and the position has been stated as under in paragraphs 14 and 15: 14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Code of Criminal Procedure must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involve....
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....we feel the following principles will have to be borne in mind by the Courts: a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? b) The exercise of the widest discretionary power under Section 311 Code of Criminal Procedure should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person. d) The exercise of power under Section 311 Code of Criminal Procedure should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing....
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....roper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. 24. Keeping the above principles in mind, when we examine the case on hand, at the very outset, it will have to be stated that the High Court, while passing the impugned order has completely ignored the principal objectives with which the provision under Section 311 Code of Criminal Procedure has been brought into the statute book. As rightly argued by the learned Counsel for the Appellant, at the foremost when the trial was very much in the grip of the trial Court, which had every opportunity to hear the Appellant, the State, as well as the second Respondent, had not even bothered to verify whether the Appellant, who was facing criminal trial was impleaded as a party to the proceedings in the High Court. A perusal of the order discloses that the High Court appears to have passed orders on the very first hearing date, unmindful of the consequences involved. The order does not reflect any of the issues dealt with by the learned Sessions Judge, while rejecting the application of the Respondents in seeking to re-examine PW-9, the second Respondent herein. Though orders....
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....6.3.2007, was not out of his own free will and volition, but due to threat and coercion at the instance of the accused persons, including the Appellant. It was contended on behalf of the second Respondent that the accused persons posed a threat by going to the extent of eliminating him and that such threat was meted out to him on 15.3.2007, when he was kidnapped from his wheat field by the accused, along with two unknown persons. 27. The trial Court having examined all the above factors in its order dated 18.11.2009, has held as under: ... Either at the time of his evidence in Court or subsequent to his evidence he never made any complaint to the court or any other officer viz. The C.J.M. Or any police officer that accused persons had yielded any pressure upon him to turn hostile to the prosecution and to give a go by to the prosecution case. He has also argued that he did not also file any affidavit or case in this regard. Rather when on the basis of the information dated 30.5.2007 given by the accused Bindeshwar Yadav Khizersarai Police Station case No. 78/2007 dated 7.6.2008 was registered by the police the informant Suresh Prasad has filed this petition and has also got the ....
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....cedure. It is also clear that PW-9 had filed petition after filing of the case against him by the accused. As such the two instant petitions are not maintainable. However, whether the hostility of PW-9 would have been tested on the touch stone of Section 145 Evidence Act by examining the I.O. As some other prosecution witness have supported the prosecution case. The evidence of the I.O. Of the case is taken would have sufficed the end of justice. 29. We find that the factors noted by the trial Court and the conclusion arrived at by it were all appropriate and just, while deciding the application filed under Section 311 Code of Criminal Procedure We do not find any bonafides in the application of the second Respondent, while seeking the permission of the Court under Section 311 Code of Criminal Procedure for his re-examination by merely alleging that on the earlier occasion he turned hostile under coercion and threat meted out to him at the instance of the Appellant and other accused. It was quite apparent that the complaint, which emanated at the instance of the Appellant based on the subsequent incident, which took place on 30.5.2007, which resulted in the registration of the FIR....