2008 (10) TMI 700 - SC - Indian Laws

Rejection of application to recall the witnesses for cross examination - Section 311 of the Code of Criminal Procedure, 1973 - HELD THAT - The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross- examine a witness who is not his own witness. 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. The factual scenario in Mishri Lal's case 2005 (5) TMI 697 - SUPREME COURT has great similarity with the facts of the present case. The High Court's view for accepting the prayer in terms of Section 311 of the Code does not have any legal foundation. In the facts of the case, the High Court ought not to have accepted the prayer made by the accused persons in terms of Section 311 of the Code. Thus, we set aside the impugned order of the High Court. The appeal is allowed accordingly.

Summary

Issues:
Challenge to judgment allowing application under Section 311 of the Code of Criminal Procedure.

Analysis:
1. Factual Background: Respondents facing trial for various offenses under IPC, witnesses examined, accused sought re-summoning of witnesses for cross-examination based on their previous statements before Children's Court.

2. High Court Judgment: High Court allowed the petition, directed re-examination of witnesses, stating the relevance of their testimony from the Children's Court in the ongoing case.

3. Arguments: Appellant's counsel contended that Section 311 parameters did not apply, while State's counsel supported appellant. Respondents' counsel argued for bringing the best evidence on record for just decision.

4. Section 311 Analysis: Section 311 of the Code grants discretionary authority to summon, examine, or recall witnesses if essential for just decision. The Court's duty is to examine necessary witnesses for justice, irrespective of party support.

5. Discretionary Power: The Court's discretion under Section 311 is crucial to ensure the best evidence is presented, avoiding failure of justice due to missing or ambiguous evidence.

6. Cross-Examination Rights: Section 311 aims to gather evidence for both prosecution and accused, with the Court having the power to summon witnesses at any stage of the trial.

7. Precedents: Legal precedents emphasize the importance of bringing forth the best available evidence, even if it contradicts earlier statements, to ensure justice prevails.

8. Mishralal Case: Cited case highlighted the importance of not recalling a witness to change previous testimony, emphasizing strict adherence to legal procedures.

9. Judgment: Supreme Court found the High Court's decision lacked legal foundation, setting aside the order and allowing the appeal. The Court emphasized strict adherence to legal procedures and the importance of presenting the best available evidence for a just decision.