HANUMAN RAM v. THE STATE OF RAJASTHAN & Ors.

the second part uses "shall". In consequences, the first A part gives purely discretionary authority to a Criminal Court and enables it at any stage of ari 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 B has already been recorded. On the other hand, the sec- ond 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 circum- c stances imposing on the Court by duty of examining a material witness who would not be brought before it. It is couched in the widest possible terms and calls for no limi- tation, 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 nee- essary for doing justice between the State and the sub- ject. 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 cer- . tain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. [Para 6] [354-C-G] D E

1.2. The object underlying s.311 of CrPC is that there may not be failure of justice on account of mistake of ei- ther party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses ex- amined 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 prosecu- F G H - ~ r- '. " . I .. 350 ·SUPREME COURT REPORTS [2008] 14 S.C.R. . ' ' B ciatmind. [Para 7][354.H, 3SSA·Cl ". .... ' A· tion· and nc:>t that of the accused .. The section is.·a general . ·:...I' ' section whieh applies 'to all: .proceedings; ·enquires' anc;f:: '' ':.: 7 trials under the Code ,~ild .empowers .Magistr~te t~>:issue: '" · ... . summonsld .. any witness~~t:any'.stage~.()f sµch: pr; oc:eed- · .. · ''. ' ings,'frial' or ·~nquhy. Jn 5~311.the signifi~ant expression that occur$ is nat anysta·ge C,)f inquir)t ortri~I o.r~other.J)ro;.: · .. · · · · ceeding under this Code·;~~ It' is, however,' to be··. borne .in mind that Whereas the :.sectiott confers a very wide power on .~he ,qoyrt.''oo summoning witnesses, the 'd.iscretion . '~Y:~ . collfert~d i$' to ~~:.~?C~r~:i$.ed ;judiciously, as the 'wide the. c power.'the greater fs.tht!"ne't:essity for applfoa.tion of judi;. · · 1.3. The:Section,·is wholly diScret.ionary. 'Th~e second · .part of»it imp~ses upon the Me1g1strate an obligation: it is; .that the 'Court s~all summon and· exatrt, ine ·au :persons, D Whose eyidence appeal'S to be ess·ential ~o the just dec;i". .. sion Of the ca~e.:_it is a ·Cardinal rule ·in the I.aw of evidence that the best available evidence should be brought before the Court. Ss.60, 64 and 91,of the 1ndian Evidence Act, 1872 are based on this rule. The Court.is not empowered under the provisions of the Code to compel either the prosecu- · tion or the defence .to examine any particular witness or · Witnesses on their' side. This must be left to the parties. But in· weighing the evidence, the Cou·rt can take note of . · the fact that the best available evidence has not been given, · · ' · ·· · . y · · ·, .. .. , . . · E . F and can draw an. adverse· inference. The Court will often have to depend on interc~pted allegations l)lade ·by the parties, ~r ()n inconclusive inference.from ·factS elicited in the evidence. In such cases, the Court has to act under the sec()hd part of the section. Sometimes the examination of · witnesses as directed by the Court may resultin what is . · G thought to be '.'filling of loopholes": That is purely a sub".· · . sidiary .factor and c:annot be taken into account. Whether the n'ew evidence is .essential or not must of course de- pend. on the facts of each case, and has to be determined by the Presiding Judge. [Para 8] [355 D·H, 356 A] . : .1-4· · -1--··: .' .·~. · H HANUMAN RAM v. THE STATE OF RAJASTHAN AND ORS. 351

1.4. The object of s.311 is to bring on record evidence A ~~ not only from the point of view of the accuseq 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 B is called by a Court arises not under the provision of s.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 c give the right of cross-examination to the complainant. [Para 9] [356 A-C] ..J ~-

1.5. Once the witness is examined in chief and cross examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given D before Court, even though that witness had given an in consistent statement before any other Court or forum subsequently. In the present case, the High Court's view for accepting the prayer in terms of s.311 of CrPC does not have any legal foundation. In the facts of the case, the E High Court ought not to have accepted the prayer made by the accused persons in terms of s.311 of CrPC. [Para 10, 11] [357 B, F-G] "-, ,, \