Full Text
HIGH COURT OF DELHI
CRL.M.C. 5945/2022, CRL.M.A. 23301/2022
RAVI LAMBA ..... Petitioner
Through: Mr.Arav Kapoor, Advocate
Through: Mr.Dhruv Gautam and Mr.Tushar Tyagi, Advocates
Date of Decision: 09.02.2023
JUDGMENT
1. Present petition has been filed challenging the orders dated 25.07.2022 & 11.10.2022. Learned counsel for the petitioner submits that his application filed under Section 311 Cr.P.C. was allowed vide order dated 25.07.2022. In the application filed under Section 311 Cr.P.C. read with Section 91 Cr.P.C. for recalling the complainant for further cross examination and for summoning of additional material witnesses, the court of learned MM passed a detailed order dated 25.07.2022 in which it was inter alia held as under: ―25.07.2022 Present: Sh. Raju Tiwari, proxy counsel for Sh. Dhruv Gautam, Ld. Counsel for the complainant. None on behalf of the accused.
1. Ld. Counsel for the accused has filed an application filed under section 311 of Code of Criminal Procedure (hereinafter Cr.P.C) read with 91 Cr.P.C filed on behalf of the accused for recalling the complainant for his cross examination under section 145(2) Negotiable Instruments Act, 1881 (hereinafter NI Act).
2. Briefly stated that the accused was examined under section 315 Cr.P.C. wherein the accused had deposed that only a loan of Rs.9.25 Lacs was advanced to him and that he had, at the instructions of the complainant, had repaid the same to the vendors of the complainant namely Mis Tirupati Stainless Steel Traders, M/s Prakash and sons and M/s Mahavir timber.
3. The copy of the application was supplied to the complainant wherein the counsel of the complainant had opposed this application on the ground that the accused is trying to fill the lacuna under the garb of this application and that the accused had not disclosed this defence neither at the stage of accepting the notice under section 251 nor at the time of his examination under section 313 Cr.P.C.
4. I have heard the both sides. I have perused the order sheets. Before delving into the facts of the case it is pertinent to elaborate upon section 311 CrPC which is reproduced here: "S.311. Power to summon materiel 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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case."
5. On a bare reading of this said section, it is clear that section 311 is in two parts. a) In the first part, the court has been given a discretion - (1) to summon any person as a witness or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. However, the latter part of this said section is mandatory in nature. The said aspect is clear from the use of the words "may" in the former part and "shall" in the latter part. b) The latter part imposes an obligation on the court to exercise the said power - ( I) to summon and examine, or (2) to recall and re-examine any such person if his evidence "appears to be essential to the just decision of the case" (emphasis supplied). In order to determine these circumstances wherein the court comes to a conclusion that the evidence of the person is essential to the decision of the case, the court only has to form an opinion as to the necessity of an order under section 311. The said phrase cannot be elaborated exhaustively or put into a strait jacket formula. The paramount consideration for the court, at this stage, is to ensure that ends of justice is not defeated. Reliance can be placed upon the case of State of West Bengal v, Tulsidas Mundhra ([1963] 2 S.C.J. 204 at 207, the Hon'ble Supreme Court had observe d that- "It would be noticed that this section confers on criminal Courts very wide powers. It is no doubt for the Court to consider whether its power under this section should be exercised or not. But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exercise of the power conferred by Section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case," 6, Coming back to the facts of the case before us, the accused had deposed in his examination under section 315 Cr.P.C that he has repaid part of the loan to the vendors of the complainant, at the request of the complainant. Now in such a circumstance, I find that those vendors would be a relevant witness in the present matter and it is essential to call and examine the said witnesses in order to substantiate the claim of the accused, as such a claim goes to the root of the matter and would eventually help the accused in buttressing the presumption of innocence in his favour, which is one of the fundamental rules of criminal jurisprudence. 7, As far as recalling the complainant is concerned, since the opportunity was indeed granted to the accused to cross-examine the complainant on the basis of the defence which was very well withing his knowledge since the inception of the case, the accused, at this stage, cannot be allowed to cross-examine the complainant to better his previous cross examination. Also, the same is not tenable for the fact that it would also amount to putting the cart before the horse, as the accused has brought in a defence in his examination under 3 15 Cr.P.C., much after the cross examination of complainant had taken place and now seeks to cross-examine him again in light of his said new defence.
8. Hence, the said application stands allowed to the extent of calling the enlisted vendors, Bank manager and Sh. Rajesh, as per the list of witnesses.
9. The Accused is directed that only one opportunity will be granted to examine the said witnesses and that the onus to bring the said witnesses to the court for deposition would rest upon him only. It is made clear that, in absence of any special consideration, no further opportunities shall be granted to the accused to examine the said witnesses.
10. This application of the accuse d stands disposed of.
11. Ld. Counsel for the complainant has also filed an application u/s 311 CrPC for recalling the notary public Sh. Parvesh Kumar Tyagi, to prove the loan agreement which is Ex CW-I/A.
12. On perusal of the said agreement, it is observed that the witnes s no. I i.e. Rajesh Kumar as mentioned in the abovesaid agreement had already been allowed to be examined as a witness on an application under section 311 CrPC filed on behalf of the accused. Any agreement can best be be proved by calling atleast by one of the witnesses. Reliance can be placed upon the section 68 of Indian Evidence Act, where it is provided when a document is required to be attested, it shall not be used as an evidence until one attesting witness has been called for the purpose of proving it. Since, the attesting witness has already been summoned by this court, the complainant will be at liberty to examine the said witness as his own witness.
13. Application of the complainant is disposed off accordingly.
14. Now to come up for examination of the abovesaid witness on 05.09.2022.‖
2. In the application, the petitioner-accused had sought to examine the following witnesses:
3. Learned counsel submits that two witnesses i.e. Rajesh Kumar and Proprietor/owner of M/s Prakash & Sons, 5264, Shardha Nand Marg, Delhi- 110006 have not appeared despite being served. Learned counsel submits that in the impugned order dated 11.10.2022, the learned trial court has fallen into an error by not taking any coercive step to summon the witnesses as they failed to appear despite being served. Learned counsel has submitted that in fact these witnesses are the persons to whom he has made the payment at the instance of the complainant.
4. Learned counsel for the complainant/respondent has opposed the present petition and stated that the learned trial court has rightly exercised the jurisdiction. It has been submitted that it was the duty of the petitioner accused to summon the witnesses and he has failed to appear, there was no duty casted upon the learned trial court to take coercive steps. Learned counsel submits that even in the order dated 25.07.2022, it was specifically stated that it will be the responsibility of the accused to produce the witnesses.
5. I have considered the submissions and perused the record.
6. The quest in any criminal trial ultimately is to reach to justice. Every party has a duty to produce the best available evidence. Moreover, it is the duty of the court also to see that the best available evidence is produced before it. In Court of its own Motion vs. Dhanraj & Ors., Crl. Rev. P.No.245/2017 dated 29.03.2017, it was inter alia held as under: ―27.So are there any options available to a trial judge under the Code of Criminal Procedure, 1973 to secure the appearance of witnesses? On a cursory examination, this statute contains the following statutory provisions: ―62. Summons how served.— (1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant. xxx xxx xxx
64. Service when persons summoned cannot be found.— Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.
65. Procedure when service cannot be effected as before provided.— If service cannot by the exercise of due diligence be effected as provided in Section 62, Section 63 or Section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.
87. Issue of warrant in lieu of, or in addition to, summons.— A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest— (a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.
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. (Emphasis supplied)
28. We may also usefully advert to a provision of the Indian Evidence Act, 1872 as well in this regard which read thus: ―165. Judge's power to put questions 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 question were asked or the document 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 Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.‖
29. We have noted above that the Code of Criminal Procedure as well as Indian Evidence Act, 1872 amply empowers the trial court to take action for ensuring the appearance of the witnesses. Therefore, the judgment of the trial court dated 17 May, 1986 in SC No. 32/86 suggests that it was passed without any effort by the court to ensure that vital witnesses were served and their evidence recorded.
30. It is noteworthy that the case stands registered as SC NO. 32/86 and the trial was completed in the middle of May, 1986 on 17 May, 1986 i.e. within a period of hardly five months.‖
7. I consider that in the present case since these witnesses are relevant, learned trial court should have taken steps in accordance with law for procuring the appearance of the witnesses. The duty of the criminal court is to ensure administration of justice. The court is duty bound to take all the steps which facilitate the production of best possible evidence for the adjudication of dispute in accordance with law. The ultimate end is quest for justice and not to evaluate the performance of the parties.
8. Hence, the impugned orders dated 25.07.2022 and 11.10.2022 are set aside. Learned trial court is directed to take appropriate steps for procuring the appearance of the witnesses. However, no interference is called regarding the cross-examination of the complainant.
9. With the above directions, the petition along with pending application is set aside.
DINESH KUMAR SHARMA, J FEBRUARY 9, 2022