Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 2787

IN THE HIGH COURT OF DELHI AT NEW DELHI
Dinesh Kumar Sharma, J.
Ravi Lamba – Appellant
Versus
Rohit Sharma – Respondent
Cr.M.C. 5945 of 2022, Cr.M.A. 23301 of 2022
Decided On : 09-02-2023

Advocates appeared:
Mr. Arav Kapoor, Advocate, for the Petitioner.
Mr. Dhruv Gautam and Mr. Tushar Tyagi, Advocates, for the Respondent.

The duty of the criminal court is to ensure administration of justice and take all steps to facilitate the production of the best possible evidence for the adjudication of the dispute in accordance with law.

Headnote:
Section 311 Cr.P.C. - Recall of Complainant and Summoning of Witnesses - NI Act - 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 re-examine any such person if his evidence appears to it to be essential to the just decision of the case. - Summary: The court discussed the provisions of Section 311 Cr.P.C. and its application in recalling the complainant and summoning additional witnesses under the NI Act. The court emphasized the discretionary and mandatory nature of the section and highlighted the obligation of the court to ensure the just decision of the case. The court also referred to relevant case law to support its interpretation of the section.
Fact of the Case:

The petitioner challenged the orders dated 25.07.2022 & 11.10.2022, which allowed the recall of the complainant for further cross-examination and summoning of additional material witnesses under Section 311 Cr.P.C. The petitioner sought to examine several witnesses, two of whom did not appear despite being served. The trial court did not take coercive steps to summon the witnesses, leading to the petitioner's challenge.
Finding of the Court:

The court set aside the impugned orders and directed the trial court to take appropriate steps for procuring the appearance of the witnesses, emphasizing the duty of the court to ensure the production of the best possible evidence for the adjudication of the dispute.
Issues: The issues revolved around the recall of the complainant and summoning of witnesses under Section 311 Cr.P.C., as well as the trial court's duty to ensure the appearance of relevant witnesses.
Ratio Decidendi: The court emphasized the discretionary and mandatory nature of Section 311 Cr.P.C., highlighting the obligation of the court to ensure the just decision of the case and the duty to take all steps to facilitate the production of the best possible evidence.
Final Decision: The impugned orders were set aside, and the trial court was directed to take appropriate steps for procuring the appearance of the witnesses. No interference was made regarding the cross-examination of the complainant.

JUDGMENT

Dinesh Kumar Sharma, J. (Oral)

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 re- examine 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 t