The court emphasized the importance of exercising judicial discretion under Section 256 Cr.P.C. and the power of the court to summon a witness under Section 311 Cr.P.C. to secure the ends of justice.

The Appellant/Complainant has preferred the instant Criminal Appeal before this Court as against the Judgment dated 02.04.2016 in S.T.C.No.89 of 2011 passed by the Learned Judicial Magistrate, Fast Track Court No.II, Erode.

2. At the outset, this Court points out that today, the Crl.O.P.No.15468 of 2016 [seeking grant of Special Leave to prefer an Appeal] was allowed by this Court for the reasons assigned therein.

3. According to the Learned Counsel for the Appellant/Complainant, the trial Court on 02.04.2016 had dismissed the case for non-appearance of the Appellant/Complainant and consequently, acquitted the Respondent in terms of Section 256 Cr.P.C.

4. The Learned Counsel for the Appellant urges before this Court that the Appellant/ Complainant was examined as P.W.1 before the trial Court and in fact, he was not cross examined on the side of the Respondent/Accused. Moreover, the Respondent/Accused had filed a Petition under Section 311 Cr.P.C. on 11.11.2011 and the same was allowed by the trial Court. But, without the cross examination of P.W.1, the evidence was closed and in fact, the trial Court had not decided the case on merits, but dismissed the case for non-appearance of the Appellant/Complainant on 28.03.2016 and this has resulted in serious miscarriage of Justice.

5. The Learned Counsel for the Appellant takes a plea that when P.W.1 (Appellant/ Complainant) appeared before the Court on 19.01.2016, the Respondent/Accused had not cross examined him and at best, the trial Court could have imposed some reasonable costs on the Appellant/Complainant for his non-appearance on 28.03.2016. However, this has not been resorted to by the trial Court.

6. Lastly, the Learned Counsel for the Appellant/Complainant contends that the Appellant/Complainant has a valid defence to substantiate his case and unless the Appellant/Complainant is given a chance to substantiate his claim, he would be very much prejudiced and would incur heavy loss.

7. In the instant case, it transpires that admittedly, the Appellant/Complainant had not appeared before the trial Court from 02.02.2016. Furthermore, a direction was given by the trial Court requiring the Appellant/Complainant to appear, but, in spite of that the Appellant/Complainant had not appeared before the Court. The Petition filed under Section 309 Cr.P.C. was filed on behalf of the Appellant/Complainant on 15.03.2016 was allowed by the trial Court.

8. At this stage, it cannot be forgotten that the trial Court, in the impugned order, at paragraph 2, had pertinently mentioned that on the side of the Appellant/Complainant, there was no representation from 21.03.2016. Under such circumstances, the trial Court had directed the Appellant/Complainant to appear on 28.03.2016 (vide D.No.370/2016 dated 02.04.2016) and the final notice was issued in this regard and notwithstanding the same, the Appellant/Complainant had not appeared before the trial Court. Even the two Petitions, filed on behalf of the Appellant/Complainant stating that he was not keeping well, came to be dismissed by the trial Court. Finally, the trial Court had categorically observed, in its impugned order, that there is no progress in the case because of the non-appearance of the Appellant/Complainant in a proper manner.

9. As regards Section 311 Cr.P.C., it is to be relevantly pointed out by this Court that the power envisaged under Section 311 Cr.P.C. must be invoked by a Court of Law only to secure the ends of Justice. Of course, the said power ought to be exercised with utmost care and circumspection. In Criminal Jurisprudence, the Law of Evidence speaks of best evidence should be brought before the Court to prove the necessary facts or points in issued. Even after respective sides have closed their evidence, always it is wide open to the trial Court/Learned Judicial Magistrate to summon any person as a witness if his evidence appears to be a just and essential one for arriving at a proper decision of the case in question. I