H.V. Gowthama vs Pebble Bay Developers Pvt. Ltd. and Others

A.N. Venugopal Gowda, J.—An application under S. 311 Cr.P.C. filed to recall Branch Manager, Indian Overseas Bank, East End Road Branch, Bengaluru and permit the complainant to lead further evidence, having been rejected, this petition was filed.

Heard Sri S. Mahesh, learned advocate for the petitioner and Sri S.G. Bhagavan, learned advocate for the respondents and perused the petition.

The point for consideration is, whether the decision to reject the application is perverse?

The nature and extent of power vested in the Court under S. 311 Cr.P.C. to recall witnesses, has been made clear by the Apex Court in Hanuman Ram Vs. The State of Rajasthan and Others, . Therein, Apex Court has held that, the object underlying S. 311 is to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of witnesses. Relevant portion reads as follows:

"7. 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 not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wide the power the greater is the necessity for application of judicial mind.

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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. These aspects were highlighted in Jamatraj Kewalji Govani Vs. The State of Maharashtra, , Rama Paswan and Others Vs. State of Jharkhand, and Iddar and Others Vs. Aabida and Another, ."

In Mohanlal Shamji Soni Vs. Union of India and another, , the extent and scope of power of the Court to recall witnesses was examined and Apex Court has held as follows:

"27. The principle of law that emerges from the views expressed by this court in the above decisions is that the Criminal Court has ample power to summon any person as a witness or recall and reexamine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case." 6. In the instant case, learned Magistrate, acting unreasonably, has passed the impugned order. There is prejudging of certain issues, which is impermissible in law. The impugned order suffers from legal infirmities of incurable nature and hence, cannot be sustained.

Having perused the application dated 04/03/2015 filed by the petitioner, I deem it appropriate to grant a last opportunity to the petitioner to obtain witness summons and examine the Manager of Indian Overseas Bank, East End Road Branch, Jayanagar, Bengaluru. Witness summons shall be issued immediately and service effected by the complainant, on or before 8/4/2015 and the witness i.e., the Bank Manager shall be examined on or before 15/4/2015. The other witnesses, if any, shall be examined by the complainant, before the end of April 2015. With the examination and cross-examination of the witness, the complainant''s case may be closed and reasonable opportunity granted to the accused, to adduce defence evidence. The case be decided with expedition i.e., on or before 31/07/2015.

Petition is disposed of accordingly.