REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO. OF 2008

(Arising out of S.L.P. (Crl.) No.7382 of 2007)

Hanuman Ram …Appellant

Versus

The State of Rajasthan and Ors. …Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of the learned Single

Judge of the Rajasthan High Court, allowing the application filed by

respondent nos.2 and 3. The said respondents had questioned the

correctness of the order dated 14.8.2007 passed by the learned

Additional Sessions Judge, (Fast Track), Parbatsar, rejecting the

application made by the accused in terms of Section 311 of the Code of

Criminal Procedure, 1973 (in short ‘Code’).

3. A brief reference to the factual aspects would suffice:

The respondent nos.2 and 3 are facing trial for the commission of

offences punishable under Sections 147, 452, 364, 302/149 and 201/149

of the Indian Penal Code, 1860 (in short ‘IPC’). Various witnesses

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were examined from time to time including Nandaram (PW-5) and

Bhopalaram (PW-3). Nandaram was examined and cross-examined on 21st

November, and Bhopalaram was examined and cross-examined on 7th June,

2006. One of the accused Shrikant was claimed to be a minor and

because of that he was tried before the Children’s Court. In that

case also Bhopalaram was examined as a witness on 9th January, 2007.

In his evidence Bhopalaram did not support the prosecution version.

Similarly, Nandaram was examined before the Children’s Court sometime

in November, 2006. An application was filed by the accused persons

before the Trial Court in terms of Section 311 of the Code with the

prayer that Nandaram and Bhopalaram may be re-summoned for cross-

examination with reference to their statements before the Children’s

Court. The trial Court found the prayer to be not acceptable and

rejected the same. An application under Section 397 read with Section

401 of the Code was filed before the High Court questioning the

correctness of the order dated 14.8.2007 rejecting the application

made. The High Court by its impugned judgment allowed the petition

and directed the court below to recall and re-examine Bhopalaram and

Nandaram. The High Court for the purpose of accepting the prayer

recorded as follows:

“In the present case, it is not in dispute that

Bhopalaram and Nandaram were examined as prosecution
witnesses before the Children Court, Ajmer and their
testimony in that case is certainly relevant in the
case relating to the petitioners. The reliability of
the witnesses is required to be examined by the Court
after hearing the arguments and at this stage it shall
not be appropriate to apprehend that witnesses
Bhopalaram and Nandaram would have been won over. In
the peculiar facts and circumstances of the case I am
of considered opinion that the court below erred while
rejecting the application preferred by the petitioners
under Section 311 Cr.P.C. The court should have
recalled Bhopalaram and Nandaram for cross examination
afresh by invoking powers under Section 311 Cr.P.C.”

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4. Learned counsel for the appellant submitted that the High Court

ought to have accepted the prayer as made because the parameters

governing Section 311 of the Code had no application to the facts of

the case. Learned counsel for the State supported the stand of the

appellant. Learned counsel for the respondent nos. 2 and 3 submitted

that ultimately the best evidence has to be brought on record for

doing justice and the High Court’s order, therefore, does not suffer

from any infirmity.

5. 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 if his evidence appears to it to be
essential to the just decision of the case.”

6. The section is manifestly in two parts. Whereas the word used in

the first part is “may”, the second part uses “shall”. In

consequences, 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

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by duty of examining a material witness who would not be 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.

7. 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, enquires 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

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summoning witnesses, the discretion conferred is to be exercised

judiciously, as the wide the power the greater is the necessity for

application of judicial mind.

8. 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.

9. 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

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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 Ravi v. State of

Maharashtra (AIR 1968 SC 178), Rama Paswan and Ors. v. State of

Jharkhand (2007 (11) SCC 191) and Iddar and Ors. v. Aabida and Anr.

(2007 (11) SCC 211).

10. In Mishralal and Ors. v. State of M.P. & Ors. (2005 (10) SCC

701), this Court observed inter alia as follows:

“5. The learned counsel for the appellants seriously

attacked the evidence of PW 2 Mokam Singh. This witness
was examined by the Sessions Judge on 6.2.1991 and
cross-examined on the same day by the defence counsel.
Thereafter, it seems, that on behalf of the accused
persons an application was filed and PW-2 Mokam Singh
was recalled. PW-2 was again examined and cross-
examined on 31.7.1991. It may be noted that some of
the persons who were allegedly involved in this
incident were minors and their case was tried by the
Juvenile Court. PW 2 Mokam Singh was also examined as
a witness in the case before the Juvenile Court. In
the Juvenile Court, he gave evidence to the effect that
he was not aware of the persons who had attacked him
and on hearing the voice of the assailants, he assumed
that they were some Banjaras. Upon recalling, PW-2
Mokam Singh was confronted with the evidence he had
given later before the Juvenile Court on the basis of
which the accused persons were acquitted of the charge
under Section 307 IPC for having made an attempt on the
life of this witness.”

6. In our opinion, the procedure adopted by the

Sessions Judge was not strictly in accordance with law.
Once the witness was examined in-chief and cross-
examined fully, such witness should not have been
recalled and re-examined to deny the evidence he had
already given before the court, even though that
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 witness had given an inconsistent statement before any
other court or forum subsequently. A witness could be
confronted only with a previous statement made by him.
At the time of examination of PW-2 Mokam Singh on
6.2.1991, there was no such previous statement and the
defence counsel did not confront him with any statement
alleged to have been made previously. This witness
must have given some other version before the Juvenile
Court for extraneous reasons and he should not have
been given a further opportunity at a later stage to
completely efface the evidence already given by him
under oath. The courts have to follow the procedures
strictly and cannot allow a witness to escape the legal
action for giving false evidence before the court on
mere explanation that he had given it under the
pressure of the police or some other reason. Whenever
the witness speaks falsehood in the court, and it is
proved satisfactorily, the court should take a serious
action against such witnesses.”

11. The factual scenario in Mishri Lal’s case (supra) has great

similarity with the facts of the present case. The High Court’s view

for accepting the prayer in terms of Section 311 of the Code does not

have any legal foundation. In the facts of the case, the High Court

ought not to have accepted the prayer made by the accused persons in

terms of Section 311 of the Code. Above being the position, we set

aside the impugned order of the High Court.

12. The appeal is allowed accordingly.

………………………………………………J.
(DR. ARIJIT PASAYAT)

………………………………………………J.
(J.M. PANCHAL)
New Delhi:
October 13, 2008