Sushil Kukreja, J
1. This order shall dispose of an application filed by the applicant/Respondent State under Section 311, read with Section 391 of the Code of Criminal
Procedure, for summoning the witness, Sh. Prithvi Singh Chauhan and leading the additional evidence.
2. It has been averred in the application that Sh. Prithvi Singh Chauhan, the then Secretary, Gram Panchayat had entered the date of birth of the child
victim in the births and deaths register of the concerned Gram Panchayat, but inadvertently he was not cited as a witness at the time of preparation of
the chargesheet, as such, he had not been examined before the learned trial Court. It has further been averred that the statement of the aforesaid
witness is very relevant to prove the age of the child victim and, therefore, he may be summoned alongwith entire record from the concerned Gram
Panchayat.
3. Reply to the application has been filed by the non-applicant/appellant, wherein, it has been averred that the entries in the births and deaths register
are per se admissible and, therefore, there is no legal requirement to examine the author of such entries. It has further been averred in the reply that
by filing the present application the applicant/State is trying to re-open the case with malafide intention to fill the loopholes of the case, thereby causing
serious damage and inherent prejudice to the defence of the non-applicant/appellant. In support of his arguments, a strong reliance has been placed by
the learned counsel for the non-applicant/appellant upon the decision rendered by the Hon’ble Supreme Court in Swapan Kumar Chatterjee Vs.
Central Bureau of Investigation, (2019) 14 SCC 328.
4. We have heard the learned Deputy Advocate General for the applicant/State as well as learned counsel for the non-applicant/appellant and have
also gone through the material available on record.
5. The question which arises for consideration before this Court is as to whether in the facts and circumstances of the present case, the proposed
witness is liable to be summoned in exercise of power under Section 311 of the Cr. P.C.
6. At this stage, it would be apt to reproduce Section 311 of the Cr. P.C., which reads as under:-
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.
7. It is settled law that Section 311 Cr. P.C. confers a very wide power on the Courts to summon any person as a witness at any stage of any inquiry,
trial or other proceeding and examine or recall and re-examine any such person, if his evidence appears to be essential to the just decision of the case.
8. The scope of Section 311 of the CrPC has been considered by the Hon’ble Supreme Court inter alia inN atasha Singh Vs. Central Bureau
of Investigation, (2013) 5 SCC 741, wherein the Court, after reference to earlier authorities, stated the principle in the following terms:
“8. Section 311 Cr. P.C. empowers the court to summon a material witness, or to examine a person present at “any stage†of “any enquiryâ€, or
“trialâ€, or “any other proceedings†under the Cr. P.C., or to summon any person as a witness, or to recall and re-examine any person who has already
been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr. P.C. has conferred a very wide
discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is
very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise
such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to
examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.
xxxxxx
15……….. The power conferred under Section 311 Cr. P.C. must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and
valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as ‘any Court’, ‘at any stageâ€, or
‘or any enquiry, trial or other proceedings’, ‘any person’ and ‘any such person’ clearly spells out that the provisions of this section have been
expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is
essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to
the just decision of the case.â€
9. In Varsha Garg Vs. State of Madhya Pradesh, AIR 2022 SC 3707, it has been held as under:-
“25 Further, the Court while relying upon the earlier decisions in J.K. International v. State (Govt. of NCT of Delhi)14, Zahira Habibulla H. Sheikh v. State of
Gujarat15, Manu Sharma v. State (NCT of Delhi)16, Mohanlal Shamji Soni v. Union of India17, Rajendra Prasad v. Narcotic Cell18, noted:
“31 …a criminal court cannot remain a silent spectator. It has got a participatory role to play and having been invested with enormous powers under Section
311 CrPC, as well as Section 165 of the Evidence Act, a trial court in a situation like the present one where it was brought to the notice of the court that a
flagrant contradiction in the evidence of PW 18 who was a statutory authority and in whose presence the test identification parade was held, who is also a
Judicial Magistrate, ought to have risen to the occasion in public interest and remedied the situation by invoking Section 311 CrPC, by recalling the said
witness with further direction to (2001) 3 SCC 462 (2004) 4 SCC 158 (2010) 6 SCC 1 (1991) Supp (1) SCC 271 (1999) 6 SCC 110 the Public Prosecutor for
putting across the appropriate question or court question to the said witness and thereby set right the glaring error accordingly. It is unfortunate to state that the
trial court miserably failed to come alive to the realities as to the nature of evidence that was being recorded and miserably failed in its duty to note the serious
flaw and error in the recording of evidence of PW 18.â€
10. In Swapan Kumar Chatterjee Vs. Central Bureau of Investigation, (2019) 14 SCC 32,8 which has been relied upon by the learned counsel
for the non-applicant/appellant, it has been held as under: -
“11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised
only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this Section to even recall
witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts
and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of
the process of law.â€
11. Our own High Court in Sonu Vs. State of Himachal Pradesh, 2020 (1) Shim. LC 567 has held as under:-
“12. ….. The legal principles culled out on the basis of the law so discussed reads as follow:
i) Lacuna in the prosecution case must be understood as the inherent weakness or latent wedge in the matrix thereof.
ii) the advantage of a lacuna in the prosecution case normally go in favour of the accused but an oversight during the course of trial cannot be treated as
irreparable lacuna.
iii) the function of the criminal courts is administration of criminal justice and not to count errors committed by the parties during the course of trial. The object of
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 piece of evidence on record or
leaving ambiguity in the statements of witnesses examined by either side.
iv) The determinative factor is as to whether it is essential to re-examine a witness for the just decision of the case.
v) The only object underlying Section 311 of the code is to bring on record the 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.
vi) The nature, scope and object of Section 311 of the Code dealing with the principles for exercise of discretionary power is that the power under Section 311 of
the Code though is vast one and can be exercised at any stage of the trial. However, should be exercised only in those cases where the evidence to be tendered by
the witness on re-call is germane to the issue involved. In case such evidence could not be adduced or brought on record due to an inadvertence, the power is not
limited to re-call a witness for further cross-examination with reference to his previous statement but also to take additional evidence for any reasons at a just
decision.
vii) This discovery of truth is essential principles of any trial or inquiry to render a just decision after discovering all relevant facts.
viii) Of course power must be exercised judiciously and not capriciously or arbitrarily as any improper or capricious power may lead to undesirable results.
ix) The additional evidence must not be received as a disguise for retrial or to change the nature of the case against either of the parties.
x) The opportunity to cross-examine the witness qua the additional evidence recorded on re-examination and to produce rebuttal evidence, if any, should be
given to the other party.
xi) The very use of words such as “any Courtâ€, “at any stageâ€,or “or any inquiry, trial or other proceedingsâ€, “any person†and“any such
person†clearly spells out that the provisions of Section 311 of the Code have to be exercised in the widest possible terms and do not limit the discretion of the
Court in any way. Fair trial entails the interest of the accused, the victim and of the society, therefore, fair trial includes the grant of fair and proper opportunities
to the parties. Where the offence is against society, it is the unfortunate victim, who is the actual sufferer,hence it is imperative for the prosecution to ensure that
no stone is left unturned to bring guilt home to the accused.
xii) That the power under Section 311 of the Code must be exercised with caution and circumspection and only for strong and valid reason as recall of a witness
already examined is not an opportunity as a matter of course and discretion given to the court in this regard has to be exercised judicially to prevent failure of
justice.
xiii) that delay in filing the application for re-calling a witness is one of the important factor and the same should be explained in the application.â€
12. Thus 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 in this section, the significant
expression that occurs is ""at any stage of any inquiry or trial or other proceeding under this Code"".
13. In view of the above stated authoritative pronouncements on legal principle, coming to the case on hand. The perusal of the record reveals that
during investigation, the Investigating Agency had moved an application to the Secretary, concerned Gram Panchayat to issue birth certificate of the
child victim “Nâ€. During the course of the trial PW-10, the then Panchayat Secretary of the concerned Gram Panchayat appeared in the witness
box and had, adduced in evidence copy of Parivar Register, Ext. PW-10/B and Birth Certificate, Ext. PW-10/C of the child victim “Nâ€. In the
extract of Parivar Register, Ext. PW-10/B, the date of birth of the child victim “N†has been mentioned as 20.01.2006 and the date of birth of her
eldest sister “R†has been mentioned as 10.12.1998. However, in Birth Certificate, Ext. PW-10/C, the name of child victim has wrongly been
mentioned as “Râ€, who is the eldest sister of the child victim “Nâ€, but her date of birth has been mentioned as 20.01.2006.
14. Thus, prima facie it appears that birth certificate, Ext. PW-10/C has been issued contrary to the record due to some mistake by the person who
had issued the same. Therefore, in order to clear the ambiguity and also to arrive at the just decision of the case, evidence of Sh. Prithvi Singh
Chauhan, the then Secretary, Gram Panchayat, is essential for just decision of the case and it can not be said to amount to filling up of the lacuna or
the abuse of process of law.
15. Learned counsel for the appellant next contended that the name of Sh. Prithvi Singh Chauhan was not cited as a witness in the list of witnesses
submitted by the prosecution in the chargesheet under Section 173 Cr. P.C. and thus, he could not be summoned as a witness. However this
contention of the learned counsel for the appellant that only those witnesses can be examined whose names find mention in the list of witnesses
submitted with the charge sheet under Section 173 of the Code, if accepted, will render the provisions of Section 311 of the Code of Criminal
Procedure insignificant. In its recent decision in V.N. Patil Vs. K. Niranjan Kumar and Others, (2021) 3 SCC 661, the Hon’ble Supreme Court
was faced with a similar situation. The Court was concerned with a case where the Trial Court had allowed an application of the prosecution under
Section 311 of the Cr. P.C., although the proposed witnesses had not been examined by the Investigating Officer during the course of the investigation
nor cited as prosecution witnesses in the final report submitted to the Court. The Court, however, having regard to the objective of Section 311 of the
CrPC, permitted the witnesses to be summoned. In doing so, the Supreme Court reversed the view of the High Court to the contrary, and restored the
directions of the Trial Court. The Court recorded that the object of Section 311 of the CrPC is to avoid a failure of justice on account of mistake of
either party in bringing valuable evidence on record. The relevant portion of the aforesaid judgment reads as under:-
“7. Learned counsel for the respondents made various submissions in questioning the application filed under Section 173(5) read with Section 311 CrPC
when the trial reached the stage of hearing and contended that the witnesses cited to be summoned for the purpose of examining them on behalf of the
prosecution, are neither the witnesses examined by the investigating officer during the course of his investigation, nor cited as the prosecution witnesses in the
final report……..
xxx
14. The object underlying Section 311 CrPC 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 significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Codeâ€. It is, however, to be borne in
mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said “wider the power, greater is the
necessity of caution while exercise of judicious discretion.â€
xxx
17. The aim of every Court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth
the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and
valid reasons and with caution and circumspection to meet the ends of justice.â€
16. In the case at hand, although the name of the witness proposed to be examined, has not been cited by the prosecution in the chargesheet, however,
as observed earlier, in order to clear the ambiguity and that there may not be failure of justice on account of some mistake in bringing the valuable
evidence on record and also to arrive at just decision of the case, his evidence is essential to ascertain the age of the child victim. Hence, the instant
application filed by the State/prosecution is allowed and Sh. Prithvi Singh Chauhan, S/o Govind Ram Chauhan, R/o VPO Thangar, Tehsil Chopal,
District Shimla, H.P., the then Secretary, Gram Panchayat, Jhalta, now posted as Inspector,Co-operative Society Block Chopal, District Shimla, H.P.
is ordered to be summoned alongwith the entire relevant record from Gram Panchayat, Jhalta for recording his statement with respect to the date of
birth of the child victim “Nâ€. The application stands disposed of.
Now list the case for the evidence of the aforesaid witness on 16.10.2024.
