N.S. Dhanik, J
In the present case, an FIR was lodged against three unknown persons on 16.3.2010 by Mohd. Iqbal (the applicant herein) wherein it was stated that
on 16.3.2010, his brother Mohd. Iqram had gone on a motorcycle to collect payment, for sugarcane supplied by him, from the sugar mill. At about 1
PM on that day, when he was returning home, three motorcycle borne assailants intercepted him in the way and they looted his motorcycle and the
money which he had received from the sugar mill. When his brother resisted, all the three assailants opened fire on his brother who suffered two
gunshot injuries. His brother was shifted to the Civil Hospital, Roorkee where he died ultimately. On hearing the sound of gunfire, people of the vicinity
gathered there and on seeing them, the assailants fled away from the spot.
On 18.11.2010, one Satpal Sharma sworn in an affidavit wherein he stated that at about 1 PM on 16.3.2010, he left his house on a bicycle and was
going towards Puhana. When he reached near the place of occurrence, he saw that three motorcycle borne persons were fleeing away after gunshot
injuries to a person who was also on a motorcycle. The injured called Satpal Sharma by indication and narrated the entire incident to him. The injured
hold him that he was shot by Farman, the brother-in-law of his cousin brother and two other persons, namely, Salim and Mubarik were accompanying
Farman and all the three together committed the crime. After saying this much, the injured started faltering and the crowd started gathering at the
spot. Thereafter police arrived at the spot and this witness told all these things to the police.
Satpal Sharma submitted his aforementioned affidavit to SSP, Haridwar. Subsequently, he was examined during trial as PW3. During his deposition
before the trial court, he turned hostile. In his deposition before the trial court, PW3 said that he did not submit any affidavit nor he put in his signature
on the said affidavit. Pursuant to this, the complainant moved an application to call Sunil Kumar, Notary, in order to verify the authenticity of the said
affidavit. The trial court vide the impugned order dated 19.11.2016 rejected the said application of the complainant.
Learned Counsel for the applicant drew attention of this Court towards the provisions envisaged under Section 311 CrPC and Section 165 of the
Indian Evidence Act, 1872. Section 311 CrPC reads as under:
“311. Power to summon material witness, or examine person present. â€" 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.â€
Section 165 of the Indian Evidence Act is reproduced as under:
“165. Judge’s power to put question or order production.- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask
any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production
of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the
leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon
facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to
answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131,
both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would
be improper for any other person to ask under Sections 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases
hereinbefore excepted.â€
Learned Counsel for the applicant relied upon a judgment of this Court passed on 14.9.2010 in Criminal Revision No. 161 of 2010, State of
Uttarakhand v. Tilak Set & Others, wherein a coordinate Bench of this Court has observed as under:
“The main objective in a trial is to reach to the truth of the matter. The entire trial or the proceedings in a trial court are nothing if there are not a
pursuit for truth and justice. Under Section 311 Cr.P.C. the Court at any stage of inquiry or trial can summon any person as a witness or examine any
person in attendance who has not even been summoned earlier as a witness or recall or examine a person already examined. These plenary powers
have been given for a purpose so that there may not be a failure of justice on account of any mistake of either of the two parties in the trial, in bringing
a valuable evidence on record or leaving any ambiguity in the statement of witnesses which have already been examined.â€
In the above judgment, decision rendered in Zahira Habibullah Sheikh & Anr. v. State of Gujarat and Ors. [(2004) 4 SCC 158] has been referred,
wherein the Hon’ble Apex Court while elaborating the powers under Section 165 of the Evidence Act and Section 311 Cr.P.C. has observed as
under:
“The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The
section consists of two parts i.e (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels
the Court to examine a witness if his evidence appears to be essential to the just decision of the Court.â€
The Apex Court stated that the second part of Section 311 Cr.P.C. is mandatory and is not a matter of choice once a court comes to the conclusion
that such powers have to be exercised for a just decision.
In view of the facts and circumstances of the case and the settled legal position discussed hereinabove, this Criminal Miscellaneous Application under
Section 482 CrPC is allowed. Order under challenge is set aside. The trial court is directed to summon Sushil Kumar, the Notary before whom the
PW3 is alleged to have sworn in and signed the said affidavit, and record his deposition in order to verify the authenticity of that affidavit.
