Godrej Pacific Tech.
Ltd. Vs. Computer Joint India Ltd.  INSC 1253 (30 July 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1181 OF 2008
(Arising out of S.L.P. (Crl.) No. 6396 of 2006) Godrej Pacific Tech. Ltd.
...Appellant Computer Joint India Ltd. ...
DR. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Punjab and
Haryana High Court, rejecting the petition filed by the appellant. Before the
High Court challenge 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').
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.
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 for the accused had taken an objection
that the applicants counsel was asking misleading questions. Hence the trial
Court had directed the witness to give his statement and as a layman, he gave
But inadvertently he
had not proved the relevant documents i.e. cheques, cheque returning memos,
legal notice, courier receipt, letter from complainant bank, whereas, some of
the above said documents had already been proved by other witness, other than
counsel for the respondents supported orders of the court below.
this context, reference may be made to Section 311 of the Criminal Procedure
Code which reads as follows:
"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 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."
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 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 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 facts.
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.
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
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 7 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
(1967 (3) SCR 415).
above position was highlighted in Zahira Habibullah Sheikh & Anr. v. State
of Gujarat & Ors. [(2006) 3 SCC 374]. In the background facts of the case
we are of the view that the trial court ought to have permitted the prayer of
the appellant. That being so, the rejection of the prayer by trial court was
not proper and the High Court should not have declined to interfere.
appeal is allowed. The Trial Court shall fix a date within three months and
call the witnesses in question and accord opportunity to the accused persons and
thereafter proceed with the trial.
8 (Dr. ARIJIT PASAYAT)