The duty of judges and lawyers to ascertain the truth in every matter and the need to leave no stone unturned in achieving this objective.

JUDGMENT

Tarlok Singh Chauhan, J. - Aggrieved by the rejection of application under Section 311 Cr.P.C., the petitioner has filed the instant petition.

2. A complaint at the instance of the petitioner under Section 138 of the Negotiable Instrument Act is pending adjudication before the learned trial Magistrate. It was claimed therein that respondent had borrowed a sum of Rs. 72,000/- but had not returned the same and had executed an agreement and also pronote acknowledging the receipt of the aforesaid amount. The petitioner was unable to file the said pronote alongwith the complaint as the same was not traceable. However, the fact qua execution of the pronote was specifically mentioned in the agreement that had been placed on record. While leading evidence, the petitioner duly proved the agreement Ext.C1/A that was executed by the respondent on 02.05.2012 acknowledging his liability. It is after tracing the pronote the petitioner moved an application for production of the same, which as observed above, has been rejected by the learned Court below by concluding that the document, if allowed to come on record at this stage, will result in loss to the accused especially when he has disclosed his evidence.

I have heard learned counsel for the parties and have gone through the material placed on record.

3. At the outset, this Court is firstly required to deal with the scope and ambit of Section 311 Cr.P.C. The provisions have been considered in detail by the Hon''ble Supreme Court in State of Haryana versus Ram Mehar and others , (2016) 8 SCC 762, wherein the entire law on the subject was discussed in detail in the following manner:-

"26. Having dwelled upon the concept of fair trial we may now proceed to the principles laid down in the precedents of this Court, applicability of the same to a fact situation and duty of the court under Section 311 CrPC. The said provision 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 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."

27. A quarter of a century back, a two-Judge Bench in Mohanlal Shamji Soni v. Union of India , (1991) Supp1 SCC 271 has held that: (SCC pp.276-77, paras 7-9)

"7 ..Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words ''to be'' before the word ''essential'' occurring in the old section. This section is manifestly in two parts. Whereas the word used in the first part is ''may'' the word used in the second part is ''shall''. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Court and enables it ''at any stage of enquiry, trial or other proceedings'' under the Code to act in one of the three ways, namely,

(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.

8. The second part which is mandatory imposes an obligation on the court -

(1) 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.

9. The very usage of the words such as ''any court'', ''at any stage'', or ''of any enquiry, trial or other proceedings'', ''any person'' and ''any such person'' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspectio