The main legal point established in the judgment is the wide power of the court under Section 311 Cr.P.C. to summon and examine witnesses at any stage of the inquiry or trial, and the importance of bringing the best available evidence before the court to achieve substantial justice.

JUDGMENT :

Anil Kshetarpal, J.

Accused is challenging the correctness of the order dated 29.08.2019 passed by the learned Judicial Magistrate, exercising powers under Section 311 Cr.P.C. and directing re-examination of a bank official to produce and prove loan application form, account statement pertaining to Jaswinder Singh and original sale deed.

2. This Court has heard the learned counsel for the petitioner at length.

3. Learned counsel for the petitioner has submitted that in the present case final arguments were heard by the learned Court and therefore, the order passed is wrong. He has further submitted that the order passed by the Court, results in filling up lacuna in the case of prosecution, which is not permissible. He has also submitted that since the accused has been examined under Section 313 Cr.P.C., therefore, defence of the accused stands disclosed and hence the application cannot be allowed.

4. Section 311 Cr.P.C. enables the Court to summon any person as a witness or examine any person in attendance or re-examine any person already examined. The only condition is that his evidence appears to be essential to the just decision of the case. Section 311 Cr.P.C. is extracted 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".

5. Power under Section 311 Cr.P.C. has been very beautifully explained by the Hon'ble Supreme Court in the case of Zahira Habibullah Sheikh and Another Vs. State of Gujarat and others, (2006) 3 SCC 374. Paras 26,27 and 28 of the judgment are relevant for the decision of the present case, which are extracted as under:-

"26.XXX XXX XXX XXX XXX

XXX XXX XXX XXX

The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.

27. 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 no