Paswan & Ors. Vs. State of
 Insc 405 (13 April 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
CRIMINAL APPEAL NO. 544 2007 (Arising out of SLP (Crl) No.912 of 2006) Dr.
ARIJIT PASAYAT, J.
Appellants call in question legality of the order passed by a learned Single
Judge of the Jharkhand High Court dismissing the petition filed by the
Background facts in a nutshell are as follows:
Alleging that PW4 (hereinafter referred to as the victim) was subjected to
rape, attracting punishment under Section 376 of the Indian Penal Code, 1860
(in short the 'IPC') First Information Report (in short the "FIR') was
lodged by the informant. The date of occurrence was stated to be 30.5.1992.
The charge sheet was filed on 29.9.1994. The examination of witnesses after
framing of charges continued from 1994 to 2004. After examination of several
witnesses on 18.5.2004 the trial court directed the production of further
witnesses, if any. Since no prosecution witness was present on 18.5.2004,
28.5.2004 and 10.6.2004, evidence of prosecution was closed.
On 16.6.2004 the statement of accused persons was recorded under Section 313
of the Code of Criminal Procedure, 1973 (in short the 'Code'). The evidence of
the defence witnesses was recorded between 25.6.2004 and 13.12.2004. Thereafter
the matter was placed for argument. At this stage an application purported to
be under Section 311 of the Code was filed for recalling of the victim for
further cross examination on the ground that the parties have settled the
dispute outside the Court at the intervention of the well-wishers and also the
informant could not identify the persons who allegedly committed the offence
due to darkness. The trial court rejected the application by order dated
1.4.2005. The trial court was of the view that in view of the circumstances
indicated it would not be proper to allow the application of the accused for
recalling the victim. The same was accordingly dismissed. It was noted that the
case was pending for trial for more than ten years. Application in terms of
Section 482 of the Code was filed before the High Court which was dismissed by
the impugned order. The High Court was of the view that the compromise petition
which was annexed to the petition under Section 482 of the Code referred to
purported compromise between the parties. The High Court noted that Section 376
of IPC is not compoundable and when the victim was examined and cross examined
during trial, the prayer to recall the victim is not acceptable. Accordingly
the petition was rejected.
In support of the appeal, learned counsel for the appellants submitted that
when parties have settled the disputes continuance of the proceeding would not
be in the interest of the justice and the High Court should have exercised
jurisdiction under Section 482 of the Code.
Learned counsel for the State on the other hand supported the orders passed
by the trial court and the High Court.
The scope and ambit of Section 311 of the Code, which reads as follows,
needs to be noted:
"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 a
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 it to be essential to the
just decision of the case."
The section is manifestly in two parts. Whereas the word used in the first
part is "may", the second part uses "shall". In
consequence, 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 anyone as a witness, or (b) 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 enabling provision, 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 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
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 proceedings, trial or enquiry. In Section 311 the
significant expression that occurs is "at any stage of any 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 application of judicial mind.
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 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.
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 the 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 provisions 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 Jamatraj Kewalji Govani v. State
of Maharashtra ( AIR 1968 SC 178).
Considering the ambit of Section 311 of the Code, it does not appear to be a
case where any interference is called for. What is the effect of evidence
already recorded shall be considered by the trial court. Since Section 376 IPC
is not compoundable in terms of Section 320 of the Code, the trial court and
the High Court rightly rejected the prayer. We find no scope for interference
in the appeal. Our non-interference shall not be construed as we have expressed
any opinion on the merits of the case.
The appeal is dismissed.