1. This revision under Section 397/401 of CrPC has been preferred against the order dated 07/2/2020 passed by Fourteenth Additional Sessions Judge, Gwalior in S.T. No. 408/2015 whereby application under Section 311 of CrPC has been rejected.
2. The facts in short are that trial for the offences under Sections 381, 387, 465 120-B, 471, 419 and 468/120-B of the IPC is pending at the defence stage before the trial Court. The applicant had filed an application on 19/12/2019 under Section 311 of CrPC whereby the applicant prayed to call for the Branch Manager of Punjab National Bank, Tansen Road Branch, Gwalior along with documents to verify the sample signature etc. The trial Court has rejected the application of the applicant on the ground that the cause has not been mentioned in the application as to why the aforesaid witness along with documents is essential for the just decision of the case.
3. Learned counsel for the applicant has submitted that on 13/7/2015 i.e. the date of incident, the applicant had sustained gun shot injury on his leg and due to fall on the rock, his right hand also got injured, therefore, he was not able to sign. Despite, alleged allegation has been made against the applicant. It is apparent from the prosecution's record itself that the applicant's hand was injured and, therefore, he was unable to sign. In support of his submission, learned counsel for the applicant has relied upon the judgment of the Supreme Court passed in the case of P. Sanjeeva Rao vs. State of Andhra Pradesh, [(2012) 7 SCC 56]. Hence, prayed to allow this revision.
4. Learned Public Prosecutor has opposed the same and has submitted that no such defence was taken by the petitioner at the time of prosecution evidence. Hence, prayed to reject the revision.
5. Heard learned counsel for the parties and perused the available record.
6. Section 311 of CrPC runs as under:-
"311. Power to summon material witness, or examine person present.-- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or 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."
7. The Supreme Court in the case of Rajaram Prasad Yadav vs. State of Bihar [(2013) 4 SCC 461 has laid down following principles:-
"(a). Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?
(b). The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
(c). If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.
(d). The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
(e). The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
(f). The wide discretionary power should be exercised judiciously and not arbitrarily.
(g). The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
(h). The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.
(i). The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
(j). Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.
(k). The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
(l). The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
(m). The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
(n). The power under Section 311 CrPC 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 care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."
8. In the present case, it is apparent from the record that the applicant had no
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t established his defence at the time of prosecution evidence. No question had been raised by the accused with regard to aforesaid defence. At the time of defence evidence, application under Section 311 of the CrPC had been filed which was lacking the reasonable cause for calling the witnesses as well as documents, therefore, the trial Court has rightly rejected the application of the applicant. 09. In view of the aforesaid discussion as well as the principles laid down by the Supreme Court in the case of Rajaram Prasad Yadav (supra), this present criminal revision is dismissed being devoid of merit. Let a copy of the order be sent to the trial Court concerned for information.