Himachal Pradesh High Court
Reserved On: 22.03.2025 vs M/S Bhagwat Motor on 28 April, 2025
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 213 of 2025
Reserved on: 22.03.2025
Date of Decision: 28.04.2025
Yog Raj Thakur ….Petitioner
Versus
M/s Bhagwat Motor ….Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? No.
For the Petitioner : Mr. Prashant Chauhan, Advocate
For Respondent : Nemo
Rakesh Kainthla, Judge
The petitioner has filed the present petition for setting
aside the order dated 6th February 2025 (Annexure P-1) passed by
the learned Judicial Magistrate First Class, Anni District Kullu
(Learned Trial Court) vide which the application for leading
additional evidence under section 311 Criminal Procedure Code
(Cr.PC) was dismissed. (The parties shall hereinafter be referred to in
the same manner in which they are arrayed before the learned Trial
Court for convenience.)
____________________
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. Briefly stated, the facts giving rise to the present
petition are that the complainant filed a complaint against the
accused for the commission of an offence punishable under Section
138 of the Negotiable Instruments Act (NI Act). It was asserted that
the accused issued a post dated cheque of ₹4,30,092 to the
complainant to discharge his legal liability. The complainant
presented the cheque to the bank, but it was dishonoured with an
endorsement of ‘insufficient funds’. The complainant served a
notice upon the accused asking him to pay the money within 15
days from the date of receipt of the notice, but the accused failed to
pay the amount. Hence, the complaint was filed before the learned
Trial Court.
3. The learned Trial Court found sufficient reasons to
summon the accused. When the accused appeared, a notice of
accusation was put to him for the commission of an offence
punishable under section 138 of the NI Act, to which he pleaded not
guilty and claimed to be tried.
4. The complainant examined himself. Learned Trial Court
recorded the statement of the accused under Section 313 CrPC and
listed the matter for defence evidence. The statements of two
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witnesses were recorded, and the matter was listed for arguments.
At this stage, the accused filed an application under Section 311
CrPC, asserting that the accused had handed over a blank security
cheque to the complainant for the repair of his car. The cost of
repair was heavy, and the accused agreed to sell the car to the
complainant for ₹5,00,000. The complainant paid ₹2 lakhs to the
accused, and he had to pay ₹3 lakhs. The accused was unable to get
the no-objection certificate (NOC) because the insurance amount
was not paid. The accused also made a complaint to the police
regarding the transaction. The accused wanted to examine the
Manager of Shri Ram Finance Company, who had financed the
vehicle, to prove that the NOC was not issued. Lokender, a
mechanic from Bhagawati Motors, was also to be examined to
prove that he had repaired the car, and the car was lying on the
premises of Bhagawati Motors. Devender Sharma, an eyewitness to
the transaction, was also to be examined. The statements of these
witnesses are essential for determining the dispute between the
parties. Therefore, it was prayed that the present application be
allowed and the witnesses be summoned for their examination.
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5. The application was opposed by the complainant by
filing a reply asserting that the accused admitted his liability
towards the complainant in his cross-examination. The accused had
availed sufficient opportunities to lead the evidence, and there was
no reason for the examination of the witnesses. Hence, it was prayed
that the application be dismissed.
6. Learned Trial court held that Devender Sharma was
already examined by the accused as DW2. The accused had not
assigned any reason for recalling him. The accused was aware of the
fact that the Manager of Shriram Finance Company was to be
examined by him, and no reason was assigned for not examining
him earlier. The accused had closed the evidence himself, and there
was nothing on record to show that any new fact had emerged.
Hence, the application was dismissed.
7. Being aggrieved by the order passed by the learned Trial
Court, the accused has filed the present petition asserting that the
learned Trial Court erred in dismissing the application filed by the
accused. No harm or prejudice would be caused to the other side by
summoning the witnesses. The examination of the witnesses would
help the court in the adjudication of the dispute pending before it.
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Hence, it was prayed that the present petition be allowed and the
order passed by the learned Trial Court be set aside.
8. I have heard Mr. Prashant Chauhan, learned counsel for
the petitioner/accused. He submitted that the learned Trial Court
erred in dismissing the application. The examination of the
witnesses is essential to adjudicate the dispute pending before the
Court. The application could not have been dismissed on the ground
that the accused had closed his evidence. Therefore, he prayed that
the present petition be allowed and the order passed by the learned
Trial Court be set aside.
9. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
10. It was laid down by Hon’ble Supreme Court in V.N. Patil
v. K. Niranjan Kumar, (2021) 3 SCC 661: 2021 SCC OnLine SC 172, that
the object underlying under Section 311 of Cr.P.C. is that there should
not be any failure of justice due to the mistake of either party in
bringing the valuable evidence on record or leaving ambiguity in the
statements of witnesses examined from either side. It was observed:
14. The object underlying Section 311 CrPC is that there may
not be a failure of justice on account of the mistake of either
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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 significant
expression that occurs is “at any stage of any inquiry or
trial, or other proceeding under this Code”. It is, however, to
be borne in mind that the discretionary power conferred
under Section 311 CrPC has to be exercised judiciously, as it is
always said, “the wider the power, the greater is the
necessity of caution while the exercise of judicious
discretion”.
xxxxx
16. This principle has been further reiterated in Mannan
Shaikh v. State of W.B. [Mannan Shaikh v. State of W.B., (2014)
13 SCC 59 : (2014) 5 SCC (Cri) 547] and thereafter in Ratanlal v.
Prahlad Jat [Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 : (2017) 3
SCC (Cri) 729] and Swapan Kumar Chatterjee v. CBI [Swapan
Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri)
839]. The relevant paragraphs of Swapan Kumar
Chatterjee [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328
: (2019) 4 SCC (Cri) 839] are as under: (Swapan Kumar
Chatterjee case [Swapan Kumar Chatterjee v. CBI, (2019) 14
SCC 328 : (2019) 4 SCC (Cri) 839], SCC p. 331, paras 10-11)
“10. The first part of this section which is
permissive gives purely discretionary authority
to the criminal court and enables it at any stage
of inquiry, trial or other proceedings under the
Code to act in one of the three ways, namely, (i)
to summon any person as a witness; or (ii) to
examine any person in attendance, though not
summoned as a witness; or (iii) to recall and re-
examine any person already examined. The
second part, which is mandatory, imposes an
obligation on the court (i) to summon and
examine, or (ii) to recall and re-examine any
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such person if his evidence appears to be
essential to the just decision of the case.
11. It is well settled that the power conferred
under Section 311 should be invoked by the court
only to meet the ends of justice. The power is to
be exercised only for strong and valid reasons,
and it should be exercised with great caution
and circumspection. The court has vide power
under this section to even recall witnesses for
re-examination or further examination,
necessary in the interest of justice, but the same
has to be exercised after taking into
consideration the facts and circumstances of
each case. The power under this provision shall
not be exercised if the court is of the view that
the application has been filed as an abuse of the
process of law.”
17. The aim of every court is to discover the truth.
Section 311 CrPC is one of many such provisions which
strengthen the arms of a court in its effort to unearth
the truth by procedure sanctioned by law. At the same
time, the discretionary power vested under Section 311
CrPC has to be exercised judiciously for strong and
valid reasons and with caution and circumspection to
meet the ends of justice.”
11. It was held in State v. N. Seenivasagan, (2021) 14
SCC 1: 2021 SCC OnLine SC 212, that the true test under Section
311 is whether the evidence of the person who is sought to be
examined or recalled is essential to the just decision of the
case or not. It was observed:
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“12. In our view, having due regard to the nature and
ambit of Section 311 of the CrPC, it was appropriate and
proper that the applications filed by the prosecution
ought to have been allowed. Section 311 provides that
any court may, at any stage of any inquiry, trial or
other proceedings under CrPC, summon any person as
a witness, 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”. The true
test, therefore, is whether it appears to the Court that
the evidence of such a person who is sought to be
recalled is essential to the just decision of the case.
13. In Manju Devi v. State of Rajasthan [Manju
Devi v. State of Rajasthan, (2019) 6 SCC 203 : (2019) 2
SCC (Cri) 765], a two-Judge Bench of this Court noted
that an application under Section 311 could not be
rejected on the sole ground that the case had been
pending for an inordinate amount of time (ten years
there). Rather, it noted that: (SCC p. 209, para 13)“13. … the length/duration of a case cannot
displace the basic requirement of ensuring a just
decision after taking all the necessary and
material evidence on record. In other words, the
age of a case, by itself, cannot be decisive of the
matter when a prayer is made for examination
of a material witness”.
Speaking for the Court, Dinesh Maheshwari J.
expounded on the principles underlying Section 311 in
the following terms: (Manju Devi case [Manju
Devi v. State of Rajasthan, (2019) 6 SCC 203: (2019) 2 SCC
(Cri) 765], SCC pp. 207-08, para 10)
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“10. It needs hardly any emphasis that the
discretionary powers like those under Section
311CrPC are essentially intended to ensure that
every necessary and appropriate measure is
taken by the Court to keep the record straight
and to clear any ambiguity insofar as the
evidence is concerned, as also to ensure that no
prejudice is caused to anyone. The principles
underlying Section 311CrPC and amplitude of the
powers of the court thereunder have been
explained by this Court in several decisions
[Vide Mohanlal Shamji Soni v. Union of India,
1991 Supp (1) SCC 271: 1991 SCC (Cri) 595; Zahira
Habibulla H. Sheikh v. State of Gujarat, (2004) 4
SCC 158: 2004 SCC (Cri) 999; Mina Lalita
Baruwa v. State of Orissa, (2013) 16 SCC 173 :
(2014) 6 SCC (Cri) 218; Rajaram Prasad
Yadav v. State of Bihar, (2013) 14 SCC 461 : (2014)
4 SCC (Cri) 256 and Natasha Singh v. CBI, (2013) 5
SCC 741 : (2013) 4 SCC (Cri) 828]. In Natasha
Singh v. CBI [Natasha Singh v. CBI, (2013) 5 SCC
741 : (2013) 4 SCC (Cri) 828], though the
application for examination of witnesses was
filed by the accused but, on the principles
relating to the exercise of powers under Section
311, this Court observed, inter alia, as under :
(Natasha Singh case [Natasha Singh v. CBI, (2013)
5 SCC 741 : (2013) 4 SCC (Cri) 828], SCC pp. 746 &
748-49, paras 8 & 15)‘8. Section 311CrPC empowers the court to
summon a material witness, or to examine a
person present at “any stage” of “any
enquiry”, or “trial”, or “any other
proceedings” under CrPC, or to summon any
person as a witness, or to recall and re-
examine any person who has already been
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examined if his evidence appears to it, to be
essential to the arrival of a just decision of
the case. Undoubtedly, CrPC has conferred a
very wide discretionary power upon the court
in this respect, but such a discretion is to be
exercised judiciously and not arbitrarily. The
power of the court in this context is very
wide, and in the exercise of the same, it may
summon any person as a witness at any stage
of the trial or other proceedings. The court is
competent to exercise such power even suo
motu if no such application has been filed by
either of the parties. However, the court must
satisfy itself that it was in fact essential to
examine such a witness, or to recall him for
further examination in order to arrive at a
just decision of the case.
***
15. The scope and object of the provision is to enable
the court to determine the truth and to render a just
decision after discovering all relevant facts and
obtaining proper proof of such facts, to arrive at a just
decision of the case. Power must be exercised
judiciously and not capriciously or arbitrarily, as any
improper or capricious exercise of such power may
lead to undesirable results. An application under
Section 311CrPC must not be allowed only to fill up a
lacuna in the case of the prosecution, or of the defence,
or to the disadvantage of the accused, or to cause
serious prejudice to the defence of the accused, or to
give an unfair advantage to the opposite party.
Further, the additional evidence must not be received
as a disguise for retrial or to change the nature of the
case against either of the parties. Such a power must be
exercised, provided that the evidence that is likely to
be tendered by a witness is germane to the issue
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involved. An opportunity of rebuttal, however, must be
given to the other party. The power conferred under
Section 311CrPC must therefore be invoked by the court
only in order to meet the ends of justice, for strong and
valid reasons, and the same must be exercised with
great caution and circumspection. The very use of
words such as “any court”, “at any stage”, “or any
enquiry, trial or other proceedings”, “any person” and
“any such person” clearly spells out that the
provisions of this section have been expressed in the
widest possible terms, and do not limit the discretion
of the court in any way. There is thus no escape if the
fresh evidence to be obtained is essential to the just
decision of the case. The determinative factor should
therefore be whether the summoning/recalling of the
said witness is, in fact, essential to the just decision of
the case.”
(emphasis in original)”
12. This position was reiterated in Varsha Garg v. State
of M.P., 2022 SCC OnLine SC 986, wherein it was observed:
“33. The first part of the statutory provision, which
uses the expression “may”, postulates that the power
can be exercised at any stage of an inquiry, trial or
other proceeding. The latter part of the provision
mandates the recall of a witness by the Court as it uses
the expression “shall summon and examine or recall
and reexamine any such person if his evidence appears
to it to be essential to the just decision of the case”.
The essentiality of the evidence of the person who is to
be examined, coupled with the need for a just decision
of the case, constitutes the touchstone which must
guide the decision of the Court. The first part of the
statutory provision is discretionary, while the latter
part is obligatory.
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34. A two-judge Bench of this Court in Mohanlal
Shamji Soni v. Union of India, (1991) Supp (1) SCC 271,
while dealing with pari materia provisions of Section
540 of the Criminal Code of Procedure 1898, observed:
“16. The second part of Section 540, as pointed out
albeit imposes upon the court an obligation of
summoning or recalling and re-examining any
witness, and the only condition prescribed is that
the evidence sought to be obtained must be
essential to the just decision of the case. When any
party to the proceedings points out the desirability
of some evidence being taken, then the court has to
exercise its power under this provision — either
discretionary or mandatory — depending on the
facts and circumstances of each case, having in
view that the most paramount principle underlying
this provision is to discover or to obtain proper
proof of relevant facts in order to meet the
requirements of justice.”
35. Justice S Ratnavel Pandian, speaking for the two-
judge Bench, noted that the power is couched in the
widest possible terms and calls for no limitation,
either with regard to the stage at which it can be
exercised or the manner of its exercise. It is only
circumscribed by the principle that the “evidence to be
obtained should appear to the court essential to a just
decision of the case by getting at the truth by all lawful
means.” In that context, the Court observed:
“18 …Therefore, it should be borne in mind that the
aid of the section should be invoked only with the
object of discovering relevant facts or obtaining
proper proof of such facts for a just decision of the
case and it must be used judicially and not
capriciously or arbitrarily because any improper or
capricious exercise of the power may lead to
undesirable results. Further, it is incumbent that
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exercising the power under this section and it
should not be used for filling up the lacuna left by
the prosecution or by the defence or to the
disadvantage of the accused or to cause serious
prejudice to the defence of the accused or to give an
unfair advantage to the rival side and further the
additional evidence should not be received as a
disguise for a retrial or to change the nature of the
case against either of the parties.”
36. Summing up the position as obtained from various
decisions of this Court, namely Rameshwar
Dayal v. State of U.P 1978 (2) SCC 518, State of
W.B. v. Tulsidas Mundhra 1963 Suppl (1) SCR 1, Jamatraj
Kewalji Govani v. State of Maharashtra (1967) 3 SCR
415, Masalti v. State of U.P.(1964) 8 SCR 133, Rajeswar
Prosad Misra v. State of W.B. (1966) 1 SCR 178 and R.B.
Mithani v. State of Maharashtra (1971) 1 SCC 523, the
Court held:
“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 re-examine 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.”
13. It is apparent from the judgments cited above that
the power under Section 313 of CrPC can be exercised at any
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stage, even after closing the evidence, if the examination of
the witnesses is necessary for the just decision of the case.
Thus, the learned trial court erred in dismissing the
application on the ground that the application could not be
allowed because the accused had closed his evidence.
14. The examination of the Manager of Shriram
Finance Company to prove that NOC was not issued is not
material for determining the transaction set up by the
accused. The accused could have shown the ownership of the
vehicle by producing its registration certificate. Hence, the
examination of the Manager was not necessary. The
complainant never disputed that the vehicle was repaired by
Bhagwati Motors. Therefore, the examination of the
mechanics of Bhagwati Motors is not necessary. Learned
Trial Court had rightly pointed out that Devender Sharma was
already examined, and no reason was assigned for recalling
him. The present petition also does not mention any reason
for recalling Devender Sharma. Hence, the reasoning of the
learned Trial Court that his examination is not necessary
cannot be faulted.
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15. No other point was urged.
16. In view of the above, there is no reason to exercise
extraordinary jurisdiction vested in this Court; hence, the
present petition fails and the same is dismissed.
17. The observations made herein before shall remain
confined to the disposal of the present petition, and will have
no bearing, whatsoever, on the merits of the case.
18. The present petition stands disposed of, and so
are the miscellaneous applications, if any.
(Rakesh Kainthla)
Judge
28th April, 2025.
(ravinder)
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