Ors. Vs. Aabida & Anr.  Insc 768 (25 July 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
CRIMINAL APPEAL NO. 934 OF 2007 (Arising out of SLP (Crl.) No.1805 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge
of the Rajasthan High Court, Jaipur Bench dated 20.2.2006 passed under Section
482 of the Code of Criminal Procedure, 1973 (in short the 'Code') and order
dated 2.3.2006 refusing to recall the said order i.e. 20.2.2006.
3. Background facts need to be noted in brief.
On 17.2.2005 the elder sister of the complainant lodged a complaint before
the police station alleging that she was married to one Shri Sakeel. After
sometime, the family of the husband of her sister started demanding dowry and
torturing her. When the complainant went to meet her sister, she saw several
wounds on her person. It was stated that both sisters were beaten and the
complainant was raped by her family members and friends of in-laws. First
Information Report (in short the 'FIR') was lodged for alleged commission of
offences punishable under Section 498A, 406 of the Indian Penal Code, 1860 in
short the 'IPC'). Since no case was found for alleged commission of offence
punishable under Section 376 IPC, the said offence was not registered.
4. Another complaint was lodged on 24.4.2005 in respect of the same alleged
event in another police station where the case was registered for alleged
commission of offence under Section 376 read with Section 120B IPC. The
appellants were arrested and an application for bail was moved. The High Court
rejected the bail application. According to the appellant matter was amicably
settled and the complainant appeared before the trial court and her statement
was recorded. Her statement was at variance with the statement recorded during
investigation. Thereafter an application in terms of Section 311 of the Code
was filed requesting for recording statement of the complainant afresh. This
according to the appellants was at the behest of some local persons and enemies
of the appellants. The trial court by Order dated 13.1.2006 held that it was a case
where prosecution was trying to fill up lacunae of prosecution version and it
5. Respondent No.1 preferred application under Section 482 of the Code for
setting aside the order of the trial court.
6. On 20th February, 2006 the application was allowed.
Thereafter an application was filed to recall the said order as no notice
was issued to respondents in the petition. They also filed an application to be
impleaded. The High Court by order dated 2.3.2006 rejected the application
filed to recall the order dated 20.2.2006.
7. In support of the appeal, learned counsel for the appellants submitted
that the High Court's orders cannot be maintained because no reason has been
indicated as to why the order of the trial court rejecting the prayer in terms
of Section 311 of the Code was set aside. It was also submitted that since no
notice has been issued to the appellants before the order was passed, the High
Court erroneously rejected the prayer to recall the order.
8. Learned counsel for the respondent No.1 however submitted that this is a
case where the High Court's order cannot be faulted even though when the first
order was passed on 20th February, 2006, no notice had been issued to the
appellants. They had sought to be impleaded on their own motion before the
order rejecting the prayer for recalling the order was passed.
9. In this context, reference may be made to Section 311 of the 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."
10. 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 any one as a witness, or (b) to examine any person present
in 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
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 application of judicial mind.
12. 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 Indian Evidence Act, 1872 (in short, '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.
13. The object of the 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 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 provision 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 Jagat Rai v. State of
Maharashtra AIR 1968 SC 178.
14. It is undisputed that the appellants were not heard before the order
dated 20.2.2006 was passed. A specific ground taken in application to recall
the order was that even no notice was issued and they were not impleaded as
It appears to have been brought to notice of the High Court that the
appellants were heard before the trial court when the application in terms of
Section 311 of the Code was decided by the trial court. It is true that the
High Court has no power to review/recall its order. But in view of the peculiar
factual scenario highlighted above, we set aside the order dated 20th February, 2006. The petition filed by the respondent No.1 shall be heard on merits.
15. It is stated that the appellants have already been impleaded in the
application. If that is so, there shall be no need of respondents being
impleaded. If it has not been done, the same shall be done. We make it clear
that we do not express any opinion on the merits of the case.
16. Appeal is allowed.