Kashmir Singh v. Balwinder Kaur And ANR

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IN THE HIGH COURT OF PUNJAB & HARYANA AT

CHANDIGARH CRM-M-17363-2018 (O & M) Date of decision: 24.03.2026 KASHMIR SINGH

...Petitioner

Versus

BALWINDER KAUR AND ANR

...Respondents

CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY Present :

Mr. Aayush Gupta, Advocate for the petitioner. Mr. Ramnish Puri, Advocate, for the respondents. AMAN CHAUDHARY, J. (ORAL) 1.

Challenge in the present petition is to the order dated 20.09.2016, Annexure P-4, passed by learned Judicial Magistrate Ist Class, Ludhiana, in Criminal Complaint No.COMI/34809/2013 dated 19.07.2011, under Sections 494, 467, 468, 471 and 120-B IPC, vide which application filed by the petitioner under Section 311 Cr.P.C., for summoning the concerned Clerk, Regional Passport Office, Chandigarh, alongwith record, was dismissed, as also the order dated 27.03.2018, whereby revision thereagainst stands dismissed being not maintainable. 2.

Learned counsel contends that the application under Section 311 Cr.P.C., was filed by the petitioner to summon the said witness alongwith record at the pre-charge stage, he being relevant for decision of the case, which was rejected on account of the fact that he was not named in the list of the witnesses and the revision challenging the same, was also

- 2 - dismissed being not maintainable. In case, the same is not allowed, an irreparable loss and prejudice is being caused to him. Only one opportunity, which may even be subject to costs, be granted. He relies on Rajwinder Kaur vs. State of Punjab 2004(4) RCR (Criminal) 474 and Rakesh Kumar vs. State of Punjab and another 2015(26) RCR (Criminal) 45.

3.

Learned counsel for the respondent opposes the petition on the ground that when the accused was summoned in the present case, reliance was not placed on the deposition of the concerned Clerk of the Regional Passport Office, Chandigarh.The Courts below have rightly passed the impugned orders.

4.

Heard.

5.

Before proceeding further, it is expedient to refer Section 311 Cr.P.C., that reads thus:

" 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."

6.

The utilization of powers under Section 311 of Cr.P.C. by the Court serves a specific purpose, which is not to patch up the gaps in the evidence of the prosecution or bolster the case of defence, but rather to unearth the pertinent facts or obtain solid evidence necessary for proper

- 3 - adjudication in the case. The latter part of the section clearly enunciates that any person can be recalled or re-examined, as long as the Court is satisfied that his evidence is essential for a just decision of the case and there might not be miscarriage of justice. Illuminating the provision of Section 311 Cr.P.C. and powers with the Court, Hon'ble the Supreme Court in the case of Godrej Pacific Tech. Limited vs. Computer Joint India Limited , (2008) 11 SCC 108, observed that, "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 of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the 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 any inquiry or trial or other proceeding under this Code".

- 4 - judiciously, as the wider the power the greater is the necessity for application of judicial mind."

7.

In context of Section 311 CrPC, Hon'ble the Supreme Court in the case of Iddar vs. Aabida , (2007) 11 SCC 211, observed that, "It is couched in the widest possible terms and calls for no limitation, 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 necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means..." 8.

Hon'ble the Supreme Court in Mohanlal Shamji Soni vs. Union of India, 1991 Supp (1) SCC 271 laid down the ratio that, " 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 requirements of justice command this examination of any person which would depend on the facts and circumstances of each case." It has not been disputed that the trial is still at a nascent stage, with the prosecution evidence still ongoing.

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The law as enunciated being that the power under Section 311 Cr.P.C. can be exercised at any stage of the proceedings in order to determine the truth and render a just decision, as also to meet the ends of justice, such discretion of the Court is not limited. The determining factor should therefore be whether summoning/ recalling of the witnesses is in fact essential to the just decision of the case. 10.

Hon'ble The Supreme Court in the case of Varsha Garg vs. State of M.P., 2022 SCC OnLine SC 986 while considering and allowing the application under Section 311 CrPC had observed that, "...The statutory provision goes to emphasise that the Court is not a hapless bystander in the derailment of justice. Quite to the contrary, the Court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest." 11.

This Court in Rakesh Kumar (supra) had, as regards summoning of a witness, whose name was not mentioned in the list, held that "The aforesaid statement was made by Mohan Lal, Ex-Sarpanch when he appeared before the DSP, Sub-Division, Kartarpur on 16.3.2013. In the said statement, he has specifically mentioned that the petitioner and his family members have admitted the fact regarding forcible abortion of Paloma Kumari. Merely because the investigating officer has not mentioned the name of said Mohan Lal in the list of witnesses, the complainant cannot be permitted to suffer for this lapse on the part of the investigating agency. The accused has admitted before Mohan Lal the fact

- 6 - that they have conducted abortion of the complainant. The examination of said Mohan Lal, therefore, cannot be said to be unreasonable or an attempt to fill in the lacuna in the prosecution case." 12.

The duty of the Court is to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. The opportunity of examining the witness, which is essential for the just decision of the case, having not been granted, would result in the petitioner suffering a penalty totally disproportionate to the gravity of the mistake, that too due to unforeseen circumstances, being beyond his control.

13.

Fairness of trial being a virtue that is sacrosanct in the judicial system, the dismissal of the application of the petitioner would amount to denial of a fair opportunity to him to pursue his case. There is even a duty cast upon the Court to arrive at the truth, one of the means for which is the proper and complete examination of the witnesses. 14.

The facts of the present case when considered in juxtaposition to the judicial pronouncements, has led this Court to a conclusion that the impugned orders passed by the trial and revisional Court are liable and are set aside. Accordingly, the present petition is allowed, subject to costs of Rs.15,000/- to be paid to the respondents-accused. The petitioner is granted only one effective opportunity to produce the concerned Clerk of the Regional Passport Office, Chandigarh, alongwith record.

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Nothing herein shall be treated as an expression on the merits of the case and the trial Court shall proceed and decide the matter, independent of any observation made in the present judgment, which was only for the purpose of adjudicating the instant petition. 16.

Pending application(s), if any, shall also stand disposed of accordingly.

24.03.2026 (AMAN CHAUDHARY) parveen kumar JUDGE Whether speaking/reasoned : Yes / No Whether reportable : Yes / No