TaxTMI 
TaxTMI 
2022 (8) TMI 1213
X X X X Extracts X X X X
X X X X Extracts X X X X
....d of insufficiency of funds. Based on the said complaint the trial Court summoned the petitioner to face the trial for an offence under Section 138 of the Negotiable Instruments Act. Initially the complaint was filed through Bhupinder Singh, Manager Legal as authorised signatory of the bank. Subsequently the complainant moved an application dated 5.7.2017 for substituting Rajinder Parshad, Deputy Manager to pursue the complaint in place of Mr. Bhupinder Singh. The said application for substitution was allowed by the Trial Court vide order dated 26.07.2017. During the course of trial Rajinder Parshad appeared as CW-1 and tendered his affidavit. He was cross examined by the earlier counsel for the petitioner. After the statement of the accused-petitioner was recorded under Section 313 Cr.P.C., he moved an application under Section 311 Cr.P.C. for further cross examination of CW-1 Rajinder Parshad lawful attorney of the bank. In the said application the prayer of the petitioner/accused was that there was a change of counsel and further cross examination of the complainant officer of the bank was required on two issues (i) Whether proper notice had been served on the accused or not &....
X X X X Extracts X X X X
X X X X Extracts X X X X
....levant provisions of law:- "Section 311 Cr.P.C. reads as under:- "Any court may, at any stage of any inquiry, trial or other proceedings 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 be essential to the just decision of the case." The provisions of Section 311 Cr.P.C. have been interpreted in a number of decisions of the Hon'ble Supreme Court and this Court. In "Mannan Sk. And others versus State of West Bengal and Another, 2014 (13) SCC 59, the Supreme Court of India held as under:- "10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." This Court further observed as under: "......... 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 stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rgued that the occurrence took place on 14.06.2010. After giving numerous opportunities, the prosecution closed its evidence on 02.02.2016. When the case was fixed for arguments, application under Section 311 of the Cr.P.C. Was filed at a highly belated stage. Dr. Priyanka was not cited as a witness in the list of prosecution witnesses and could not be allowed to be examined to fill up the lacuna. Therefore, the impugned order suffers from material illegality and the same may be quashed. In support of his arguments learned Counsel for the petitioner has placed reliance on the observations made in judgments rendered by this Court in CRM-M-21919 of 2008 titled Harish Kumar and others Vs. State of Haryana and another decided on 18.04.2009 and CRM-M-17282 of 2014 titled Harbinder Singh and others Vs. Jaspal Singh and others decided on 06.01.2015. 6. On the other hand, learned Counsel for the injured and learned State Counsel have submitted that Dr. Priyanka was not cited as witness in the list of prosecution witnesses due to oversight. Examination of Dr. Priyanka is necessary for just decision of the case and the same will not amount to filling up of any lacuna. The impugned order do....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hose 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. 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 pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. 12. In Rajaram Prasad Yadav Vs. State of Bihar and another, 2013 (3) R.C.R. (Criminal) 726 Hon'ble Supreme Court referred to the earlier decisions and in para No. 23 of its judgment culled out certain principles which are to be kept in mind while exercising power under Section 311 Cr.P.C. which is reproduced as under:- "23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Criminal Procedure Code read along with Section 138 of the Evidence Act, 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 needed by the Court for a just decision of a case? b) The exercise of the widest discretionary power under Section 311 Criminal Procedure Code should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ived as a disguise or to change the nature of the case against any of the party. m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. n) The power under Section 311 Criminal Procedure Code must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution 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. 13. In Mannan Sk. and others Vs. State of West Bengal and another : 2014 (4) R.C.R.(Criminal) 617 it was held by Hon'ble Supreme Court that justice must not be allowed to suffer because of the oversight of the prosecution and in that case witness was recalled for examination after 22 years and his examination was also held not to amount to filling of the lacuna. 14. In the present case, Dr.....