Important Point
Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross-examination to the complainant.

Judgment

Dr. Arijit Pasayat, J. —

1.Leave granted.

2.Challenge in this appeal is to the Judgment of a learned Single Judge of the Punjab and Haryana High Court, rejecting the petition filed by the appellant. Before the High Court challenge was to the Order passed by the learned Judicial Magistrate, Chandigarh, rejecting the application of the appellant seeking re-examination of the witnesses already examined in terms of Section 311 of the Code of Criminal Procedure, 1973 (in short ‘Code’).

3.The application was rejected by the Trial Court primary on the ground that the complaint was filed on 19.12.1996. The evidence was closed on 11.3.2004. Under Section 313 Cr.P.C. examination was over on 12.7.2004. The High Court concurred with the view of the Trial Court.

4.In support of the appeal learned counsel for the appellant submitted that the examination in chief of the witness Shri Deepak Jotshi was done on 29.7.2003. On that particular date, the counsel for the accused had taken an objection that the applicants counsel was asking misleading questions. Hence the trial Court had directed the witness to give his statement and as a layman, he gave his statement. But inadvertently he had not proved the relevant documents i.e. cheques, cheque returning memos, legal notice, courier receipt, letter from complainant bank, whereas, some of the above said documents had already been proved by other witness, other than the complainant.

5.Learned counsel for the respondents supported Orders of the court below.

6.In this context, reference may be made to Section 311 of the Criminal Procedure Code which 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.”

7.The section is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequence, 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 anyone as a witness, or (b) to examine any person present in the 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.

8.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 limite