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2018 (3) TMI 1955 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - discharge of a legally enforceable debt or not - cross-examination of the complainant on the question as to what was the source of money allegedly lent by her to the accused - HELD THAT - The court enjoys vast power to summon any person as a witness or recall and re-examine a witness provided same is essentially required for just decision of the case. Moreover, such exercise of power can be at any stage of inquiry, trial or proceedings under the Code, meaning thereby applicant can file an application at any time before conclusion of trial. Very object of Section 311 is to bring on record evidence not only from the point of view of accused and prosecution but also from the point of view of the orderly society. Otherwise also, it is well established principle of criminal jurisprudence that discovery, vindication and establishment of truth are main purposes of underlying object of courts of justice. Hon'ble Apex Court in Raja Ram Prasad Yadav v. State of Bihar and another, 2013 (7) TMI 1178 - SUPREME COURT , has held that power under Section 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case. A fair trial is main object of criminal jurisprudence and it is duty of court to ensure such fairness is not hampered or threatened in any manner. It has been further held in the aforesaid judgments that fair trial entails interests of accused, victim and society and therefore, grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right - In the case at hand, there is no dispute that complainant was cross-examined by accused but perusal of Annexure P-3 i.e. cross-examination, conducted upon complainant clearly suggests that counsel representing accused failed to cross-examine complainant on material points. Though, accused by way of cross-examination of complainant has made an endeavour to prove that no cheque was issued by him but no suggestion qua the same was put by the counsel to the complainant. Similarly, suggestion was put to the complainant that accused had not signed the cheque but signatures on cheque were never put to complainant by accused. Having carefully perused averments contained in the application filed under Section 311 CrPC and discrepancies in cross-examination of complainant pointed out by the learned counsel representing the accused, this Court is inclined to agree with the submissions having been made by learned counsel representing accused that relevant material could not be brought on record inadvertently by the learned counsel representing the accused before court below - this Court has no hesitation to conclude that learned court below miserably failed to look into/consider the averments contained in the application vis- -vis cross-examination of complainant already conducted by accused. Application allowed.
Issues Involved:
1. Legality of the order dismissing the application under Section 311 CrPC. 2. Application of Section 311 CrPC for recalling and re-examining a witness. 3. Allegations of filling up lacuna in the defense. 4. Judicial discretion and fairness in trial. Detailed Analysis: 1. Legality of the order dismissing the application under Section 311 CrPC: The petition challenged the order dated 18.8.2017 by the Judicial Magistrate First Class, Manali, which dismissed the accused's application under Section 311 CrPC. The accused contended that the order was illegal and contrary to the law laid down by the Apex Court and this Court. The accused argued that the court below did not apply its mind while passing the impugned order, making it necessary to quash and set aside the same. 2. Application of Section 311 CrPC for recalling and re-examining a witness: Section 311 CrPC empowers the court to summon, recall, or re-examine any person if their evidence is essential for the just decision of the case. The court enjoys vast power to summon any person as a witness or recall and re-examine a witness at any stage of inquiry, trial, or proceedings under the Code. The objective is to ensure no failure of justice due to mistakes by either party in bringing valuable evidence or leaving ambiguities in witness statements. The Hon'ble Apex Court and this Court have consistently held that the paramount consideration is to do justice to the case. 3. Allegations of filling up lacuna in the defense: The complainant opposed the application, alleging it was filed to fill up lacuna in the defense and to delay the proceedings. However, the court noted that the accused's counsel had inadvertently omitted to put certain suggestions to the complainant due to personal reasons, and the failure to cross-examine on material points was not intentional. The court emphasized that the objective of Section 311 CrPC is to discover the truth and render a just decision, and the accused should be allowed to correct inadvertent mistakes. 4. Judicial discretion and fairness in trial: The court reiterated that a fair trial is the main object of criminal jurisprudence, and it is the duty of the court to ensure fairness is not hampered or threatened. The court must exercise its wide discretionary power under Section 311 CrPC judiciously and not arbitrarily. The court must be magnanimous in permitting corrections of inadvertent mistakes to ensure justice. The court observed that the impugned order did not reflect an attempt to form an opinion on whether the re-examination of the complainant was necessary for the just decision of the case. Conclusion: The court concluded that the impugned order was not in consonance with the provisions of law and the principles laid down by the Apex Court and this Court. The court quashed and set aside the impugned order, allowing the accused's application under Section 311 CrPC to re-examine the complainant. The court directed the matter to be listed before the court below for re-examination of the complainant and emphasized that no further opportunity would be granted if the accused failed to cross-examine the complainant on the given date.
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