RAJARAM PRASAD YADAVversusSTATE OF BIHAR & ANR.

                        [2013) 7 S.C.R. 420


A                  RAJARAM PRASAD YADAV
                                  v.
                    STATE OF BIHAR & ANR.
                {Criminal Appeal No. 830 of 2013)
                           JULY 04, 2013
B
            [T.S. THAKUR AND FAKKIR MOHAMED
                   IBRAHIM KALIFULLA, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973:
c
        s.311 - Power of court to re-examine a witness - Principles
  to be followed while dealing with an application u/s 311 -
  Culled out - Held: In the instant case, the application of
  complainant for his re-examination has no bona tides -- Trial
0 court had the opportunity to observe the demeanour of
  complainant while tendering evidence which persuaded it to
  reach the conclusion and that deserves .more credence while
  examining the correctness of the order passed by it - Order
  of trial court did not call for any interference, in any event,
E behind the back of appellant - The trial shall be completed
  expeditiously - Evidence Act, 1972 - s.138.

       The second respondent, filed a written complaint on
  8.7.1999, alleging that on 07.07.1999, there arose a dispute
  between him and his brother over raising a construction
F and t~at at the instance of his brother, latter's son
  (appellant), fired at him, whereafter he was taken to the
  hospital for treatment. A charge sheet was filed against
  the appellant and his father for the offences punishable
  u/ss. 324, 307 read with s. 34, IPC. In the trial, the second
G respondent was examined as PW-9 on 16.3.2007 and the
  evidence of the prosecution was closed on 4.4.2007. In
  the meantime, yet another altercation took place as
  between the second respondent (PW9) and his son on
  the one side and the appellant and his father on the other.
H                              420
 RAJARAM PRASAD YADAV v. STATE OF BIHAR & 421
                         ANR.

In the said incident, the father of the appellant was stated   A
to have been beaten. This led to registration of FIR in
case Crime No.78 of 2007. Thereafter the second
respondent filed a petition dated 24.8.2007, u/s. 311
Cr.P.C. seeking permission for his re-examination. A
similar petition was filed by the Additional Public            B
Prosecutor on 5.12.2007. The trial court dismissed both
the applications. However, the High Court allowed the
prayer of the second respondent.

    Allowing the appeal, the Court
                                                               c
     HELD: 1.1 Under s. 311, Cr.P .C. widest of the powers
have been invested with the courts when it comes to the
question of summoning a witness or to recall or re-
examine any witness already examined. This is clear
from the expression "any" used as a pre-fix to "court",        D
"inquiry", "trial", "other proceeding", "person as a
witness", "person in attendance though not summoned
as a witness", and "person already examined". Section
138 of the Evidence Act, prescribes the order of
examination of a witness in the court, which will have to      E
necessarily be in consonance with the prescription
contained ins. 311 Cr.P.C. The power u/s. 311, Cr.P.C.
can be exercised by any court at any stage in any inquiry
or trial or other proceeding initiated under the Code for
the purpose of summoning any person as a witness or            F
for examining any person in attendance, even though not
summoned as witness or to recall or re-examine any
person already examined. [Para 14) [431-B-C, E-H]

    1.2 While dealing with an application u/s. 311 Cr.P.C.
read along with s. 138 of the Evidence Act, the following      G
principles, as emerging from various decisions of this
Court, will have to be borne in mind by the courts:

     (a)   Whether the court is right in thinking that the
           new evidence is needed by it? Whether the           H
    422         SUPREME COURT REPORTS               [2013) 7 S.C.R.


A                 evidence sought to be led in u/s. 311 is needed
                  by the court for a just decision of a case?

          (b)    The exercise of the widest discretionary power
                 u/s. 311 Cr.P.C. should ensure that the
                 judgment should not be rendered on inchoate,
B
                 inconclusive or speculative presentation of
                 facts, as thereby the ends of justice would be
                 defeated.

          (c)     If evidence of any witness appears to the court
c                 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         (d)     The exercise of power u/s. 311 Cr.P.C. 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         (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
F                serious prejudice to the accused, resulting in
                 miscarriage of justice.

          (f)     The wide discretionary power should be
                  exercised judiciously and not arbitrarily.
G         (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         (h)     The object of s. 311 Cr.P.C. simultaneously
RAJARAM PRASAD YADAV v. STATE OF BIHAR &            423
                     ANR.
         imposes a duty on the court to determine the      A
         truth and to render a just decision.
   (i)   The power u/s 311 Cr.PC should be exercised
         where the court arrives to the conclusion that
         additional evidence is necessary, not because
         it would be impossible to pronounce the           8
         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     c
         sense should be the safe guard, 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
                                                           0
         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     E
         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   F
         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           G
         undesirable results.
   (I)   The additional evidence must not be received
         as a disguise or to change the nature of the
         case against any of the party.
                                                           H
    424     SUPREME COURT REPORTS                 [2013] 7 S.C.R.


A         (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.
B
          (n)   The power u/s. 311 Cr.P.C. 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
c               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
D               as a human right. [Para 23] [438-D-H; 439-A-H;
                440-A-G]

      Jamatraj Kewalji Govani vs. State of Maharashtra 1967
  SCR 4.15 = AIR 1968 SC 178; Mohan/a/ Shamji Soni vs.
E Union of India and Another 1991 (1) SCR 712 = 1991
  Suppl.(1) SCC 271; Raj Deo Sharma (II) vs. State of Bihar
  1999 (3) Suppl. SCR 124 = 1999 (7) SCC 604; U. T. of Dadra
  and Nagar Have/i and Anr. vs. Fatehsinh Mohansinh
  Chauhan 2006 (4) Suppl. SCR 522 = 2006 (7) SCC 529;
F lddar & Ors. vs. Aabida & Anr. 2007 (8} SCR 518 =AIR 2007
  SC 3029; P. Sanjeeva Rao vs. State of A.P. 2012 (6) SCR
  787 = AIR 2012 SC 2242; and Sheikh Jumman vs. State of
  Maharashtra (2012) 9 SCALE 80 - referred to.
       1.3 In the case on hand, the High Court, while passing
G the impugned order has completely ignored the principal
  objectives with which the provision u/s. 311 Cr.P.C. has
  been brought into the statute book. At the foremost, the
  appellant who was facing criminal trial was not impleaded
  as a party to the proceedings in the High Court. Further,
H the High Court appears to have passed orders on the
   RAJARAM PRASAD YADAV v. STATE OF BIHAR & 425
                           ANR.
.. involved. The order of the High Court does not reflect any   A
   of the issues dealt with by the Sessions Judge while
   rejecting the application of the respondents in seeking to
   re-examine the second respondent. [Para 24] [440-H; 441-
   A-D]
                                                                B
       1.4 The trial Judge has recorded that contrary to the
  complaint preferred by the second respondent on
  8.7.1999 registered as case No. 71/1999, wherein offences
  u/ss. 324/307/34 IPC were reported alongwith s. 27 of the
  Arms Act, based on the report of the doctor, the
  chargesheet came to be filed u/ss. 324/307/34 IPC and no      C
  charge u/s. 27 of the Arms Ac was laid. In the course of
  the trial, the turn of examination of PW-9, (second
  respondent) came on 16.3.2007, nearly after eight years
  from the date of occurrence and he categorically deposed
  that he never made any statement to the police nor was        D
  he beaten on the date of occurrence, nor was he hit by
  any bullet shot. Further he made a clear statement that
  the injury sustained by him was due to the fall into the
  hole. He also made a categorical statement that his sons
  PWs-4 and 5 were not present at the place of occurrence.      E
  [Para 25] [441-F-H; 442-A-B]
       1.5 The application of the second respondent,
  seeking the permission of the court u/s. 311 Cr.P.C. for
  his re-examination has no bona fides. It was quite
                                                                F
  apparent that the complaint, which emanated at the
  instance of the appellant based on the subsequent
  incident, which took place on 30.5.2007 and resulted in
  the registration of the FIR in case No.78/2001, seems to
  have weighed with the second respondent to present the
  application u/s. 311 Cr.P.c.; by way of an afterthought.      G
  The trial court, had the opportunity to observe the
  demeanour of the second respondent, while tendering
  evidence which persuaded it to reach the conclusion and
  that deserves more credence while examining the
  correctness of the order passed by it. The order of the       H
    426      SUPREME COURT REPORTS               [2013] 7 S.C.R.


A trial court did not call for any interference, in any event,
  behind the back of the appellant. The order of the High
  Court is set aside and that of the trial court restored. The
  trial shall be completed expeditiously. [Para 29-30] [444-
  F-H; 445-A, F-G]
B
                       Case Law Reference:
          1967 SCR 415                 referred to     para 15
          1991 (1) SCR 712             referred to     para 16
c         1999 (3) Suppl. SCR 124      referred to     para 17
          2006 (4) Suppl. SCR 522      referred to     para 18
          2007 (8) SCR 518             referred to     para 19
          2012 (6) SCR 787             referred to     para 20
D
          (2012) 9 SCALE 80            referred to     para 21
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 830 of 2013.
E       From the Judgment and Order dated 09.12.2010 of the
    High Court of Judicature at Patna in Crl. Misc. No. 12454 of
    2010.

          Mohit Kumar Shah for the Appellant.
F
        Gopal Singh, Anant Sharma, Amlan Kumar Ghosh for the
    Respondents.

          The Judgment of the Court was delivered by

G       FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave
    granted. ·

      2. This appeal is directed against the order of the High
  Court of Judicature at Patna, in Criminal Miscellaneous Petition
H No. 12454 of 2010, dated 9.12.2010.
  RAJARAM PRASAD YADAV v. STATE OF BIHAR & 427
  ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
       3. By a short order dated 18.11.09, passed in Sessions         A
 Trial No. 425 of 2009, the trial Court disallowed the applications
 of the Respondents filed under Section 311 of the Code of
 Criminal Procedure (Cr.P.C.), to re-examine PW-9, the
 informant. The High Court directed the trial Court to allow the
 2nd Respondent to examine himself as a witness on a specified        B
 date by its order dated 9.12.2010.

       4. To narrate the brief facts, the 2nd Respondent (PW-9),
 herein filed a written complaint, alleging that on 07.07.1999, at
 about 5 p.m. in the evening, as regards the construction of a
 latrine in his land in front of his house, a dispute arose as        C
 between him and his brother Bindeshwar Yadav and that at the
 instance of his brother Birideshwar Yadav, his son Rajaram
 Yadav, brought a country made pistol and fired· at the 2nd
 respondent (PW-9) on the left side of the back, whereafter he
 was taken to the hospital for treatment.                             D

       5. At the instance of the second respondent, based on a
  complaint dated 8.7.1999, a case in Crime No. 71 of 1999 was
  registered in Khizersarai Police Station for the offences
  punishable under Sections 324, 307 read with Section 34             E
  Indian Penal Code, 1860 and also under Section 27 of the
. Arms Act, 1959. Investigation was held and an injury report was
  brought on record, in which the doctor opined that the injury was
  caused by a hard blunt substance and was single in nature. It
  was stated that the second Respondent (PW-9) was able to            F
  secure another report later on.

      6. The appellant was enlarged on bail on 13.10.1999. A
 charge sheet bearing No. 127 of 1999, dated 31.10.1999 was
 filed against the appellant and the other accused for the
 offences under Sections 324, 307 read with 34 of IPC.                G
 Significantly, there was no charge framed under Section 27 of
 the Arms Act. Cognizance was taken and the case was
 committed and after framing of the charges, the trial
 commenced. After the examination of the other witnesses, the
 2nd Respondent was examined as PW-9 on 16.3.2007.                    H
     428     SUPREME COURT REPORTS                  [2013] 7 S.C.R.

 A        7. In his evidence, the 2nd Respondent (PW9),
    categorically stated that he never gave any statement to the
    police; that nobody beat him on the date of occurrence and that
    he was not hit by any bullet. He further stated in his evidence
    that he accidently fell into the hole of the latrine, while looking
  B into it and that some instrument, which was lying inside the hole,
    caused the injury on his body. As far as the evidence of PW-4
    and PW-5, namely, his sons, Babloo and Munna Kumar was
    concerned, the 2nd Respondent (PW9) stated that they were
    not present at the place of occurrei'rce, since Babloo was
. c staying in a hospital at Hulasganj and Munna Kumar was at
    Ranchi. The evidence of the prosecution was closed on · ·
    4.4.2007 and thereafter, the evidence of the defense side
    stated to have commenced.

        8. In the meantime, it is stated that yet another altercation
 D took place as between, the 2nd Respondent (PW9), his son
   Babloo on the one side and the appellant and his father on the
   other side, regarding the flowing of water from the latrine,
   constructed by the 2nd Respondent into the field of the father
   of the appellant.
 E
        9. Pursuant to the said issue, it is stated that the father of
   the appellant was beaten with bamboo sticks, injuring him
   seriously. In connection with the said incident, Bindeshwar
   Yadav filed a complaint before the police on 7.6.2007, leading
 F to the registration of the FIR on the same date in Khizersarai
   Police Station in case No.78 of 2007. Subsequently, the
   second respondent came forward with a petition dated
   24.8.2007, under Section 311 Cr.P.C. and sought for
   permission for his re-examination. For the same purpose, the
 G Additional Public Prosecutor also filed a petition on 5.12.2007,
   in the above applications. The trial Court passed a common
   order on 18.1 f.2009, dismissing both the applications and
   posted the case for evidence of investigation officers and the
   doctors on 18.12.2009. The second respondent approached
   the High Court by filing the present Criminal Misc. Case
 H
 RAJARAM PRASAD YADAV v. STATE OF BIHAR & 429
 ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
No.12454/2010, in which the impugned order was passed by            A
the High Court on 9.12.2010.

     10. We heard Mr. Mohit Kumar Shah, learned counsel for
the appellant and Mr. Gopal Singh, learned counsel for the first
respondent and Mr. Amlan Kumar Ghosh, learned counsel for           B
the second respondent. We also perused the order impugned,
as well as the order of the trial Court and other material papers
placed on record.

      11. Mr. Mohit Kumar Shah, learned counsel for the
appellant in his submission contended that while the trial Court    C
passed a reasoned order after hearing both parties extensively,
the Hon'ble High Court passed the impugned order in the
absence of the appellant. According to the learned counsel, the
second respondent even without impleading the appellant,
persuaded the High Court to pass the impugned order, which          D
according to the learned counsel is on the face of it, not
sustainable under Section 311 Cr.P.C. Learned counsel further
contended that by permitting the second respondent to get
himself re-examined, every attempt has been made to fill up
the lacunae in the case of the prosecution, which the High Court    E
ought not to have permitted. According to the learned counsel,
when the trial Court had examined the pros and cons, while
dealing with the prayer of the second respondent, as well as
the first respondent for re-examination of the second· respondent
and gave well-founded reasons for rejecting the applications,       F
the High Court ought not to have interfered with the same by
passing a cryptic order. Learned counsel further contended that
the application, which came to be allowed by the High Court
was vexatious and would only encourage the malicious designs
of the second respondent to get over his own earlier version        G
deposed before the Court, which fully supported the case of the
appellant.

    12. As against the above submissions, learned counsel for
the respondents contended that as enormous powers are
vested in the Court under Section 311 Cr.P.C., in the matter of     H
    430       SUPREME COURT REPORTS                  [2013] 7 S.C.R.


A examination or re-examination of a witness in order to arrive
  at a just conclusion and the High Court having exercised its
  powers in pursuance of the said power, the order of the High
  Court does not call for interference.

8       13. Having heard the learned counsel for the respective
  parties and having bestowed our serious consideration. to the
  issue involved, we find force in the submission of the counsel
  for the appellant, as the same merits acceptance. In order to
  appreciate the stand of the appellant it will be worthwhile to refer
C to Section 311 Cr.P.C., as well as Section 138 of the Evidence
  Act. The same are extracted hereunder:

          Section 311, Code of Criminal Procedure

          311. Power to summon material witness, or examine
D         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
E
          any such person if his evidence appears to it to be
          essential to the just decision of the case.

          Section 138, Evidence Act

F         138. Order of examinations- witnesses shall be first
          examined-in-chief, then (if the adverse party so desires)
          cross-examined, then (if the party calling him so desires)
          re-examined.

          The examination and cross-examination must relate to
G         relevant facts, but the cross-examination need not be
          confined to the facts to which the witness testified on his
          examination-in-chief.

          Direction of re-examination- The re-examination shall be
H         directed to the explanation of matters referred to in cross-
RAJARAM PRASAD YADAV v. STATE OF BIHAR & 431
ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
    examination; and, if new matter is, by permission of the        A
    Court, introduced in re-examination, the adverse party may
    further cross-examine upon that matter."

       14. A conspicuous reading of Section 311 Cr.P.C. would
show that widest of the powers have been invested with the
                                                                    B
Courts when it comes to the question of summoning a witness
or to recall or re-examine any witness already examined. A
reading of the provision shows that the expression "any" has
been used as a pre-fix to "court", "inquiry", "trial", "other
proceeding", "person as a witness", "person in attendance           C
though not summoned as a witness", and "person already
examined". By using the said expression "any" as a pre-fix to
the various expressions mentioned above, it is ultimately stated
that all that was required to be satisfied by the Court was only
in relation to such evidence that appears to the Court to be
essential for the just decision of the case. Section 138 of the     D
Evidence Act, prescribed the order of examination of a witness
in the Court. Order of re-examination is also prescribed calling
for such a witness so desired for such re-examination.
Therefore, a reading of Section 311 Cr.P.C. and Section 138
Evidence Act, insofar as it comes to the question of a criminal     E
trial, the order of re-examination at the desire of any person
 under Section 138, will have to necessarily be in consonance
with the prescription contained in Section 311 Cr.P.C. It is,
therefore, imperative that the invocation of Section 311 Cr.P.C.
and its application in a particular case can be ordered by the      F
Court, only by bearing in mind the object and purport of the said
provision, namely, for achieving a just decision of the case as
noted by us earlier. The power vested under the said provision
is made available to any Court at any stage in any inquiry or
trial or other proceeding initiated under the Code for the          G
purpose of summoning any person as a witness or for
examining any person in attendance, even though not
summoned as witness or to recall or re-examine any person
already examined. Insofar as recalling and re-exarnination of
any person already examined, the Court must necessarily             H
    432      SUPREME COURT REPORTS                  [2013] 7 S.C.R.

A consider and ensure that such recall and re-examination of any
  person, appears in the view of the Court to be essential for the
  just decision of the case. Therefore, the paramount requirement
  is just decision and for that purpose the essentiality of a person
  to be recalled and re-examined has to be ascertained. To put
B it differently, while such a widest power is invested with the
  Court, it is needless to state that exercise of such power should
  be made judicially and also with extreme care and caution.

       15. In this context, we also wish to make a reference to
C certain decisions rendered by this Court on the interpretation
  of Section 311 Cr.P.C. where, this Court highlighted as to the
  basic principles which are to be borne in mind, while dealing
  with an application under Section 311 Cr.P.C. In the decision
  reported in Jamatraj Kewalji Govani vs. State of Maharashtra
  -AIR 1968 SC 178, this Court held as under in paragraph 14:-
D
          "14. It would appear that in our criminal jurisdiction,
          statutory law confers a power in absolute terms to be
          exercised at any stage of the trial to summon a witness or
          examine one present in court or to recall a witness already
E         examined, and makes this the duty and obligation of
          the Court provided the just decision of the case.
          demands it. In other words, where the court exercises the
          power under the second part, the inquiry cannot be
          whether the accused has brought anything suddenly or
F         unexpectedly but whether the court is right in thinking that
          the new evidence is needed by it for a just decision of the
          case. If the court has acted without the requirements
          of a just decision. the action is open to criticism but
          if the court's action is supportable as being in aid of
          a just decision the action cannot be regarded as
G         exceeding the jurisdiction."

                                                  (Emphasis added)

      16. In the decision reported in Mohan/al Shamji Soni vs.
H Union of India and Another - 1991 Suppl.(1) SCC 271, this
RAJARAM PRASAD YADAV v. STATE OF BIHAR & 433
ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Court again highlighted the importance of the power to be                A
exercised under Section 311 Cr.P.C. as under in paragraph
10:-
       "10 .... In order to enable the court to find out the truth and
       render a just decision, the salutary provisions of Section
                                                                         B
       540 of the Code (Section 311 of the new Code) are
       enacted whereunder any court by exercising its
       discretionary authority at any stage of enquiry, trial or other
       proceeding can summon any person as a witness or
       examine any person in attendance though not summoned              C
       as a witness or recall or re-examine any person in
       attendance though not summoned as a witness or recall
       and re-examine any person already examined who are
       expected to be able to throw light upon the matter in
       dispute; because if judgments happen to be rendered on
       inchoate, inconclusive and speculative presentation of            D
       facts, the ends of justice wquld be defeated."
    17. In the decision in Raj Deo Sharma (II) vs. State of
Bihar- 1999 (7) SCC 604, the proposition has been reiterated
as under in paragraph 9:-                                                E
       "9. We may observe that the power of the court as
       envisaged in Section 311 of the Code of Criminal
       Procedure has not been curtailed by this Court. Neither in
       the decision of the five-Judge Bench in A.R. Antulay case
       nor in Kartar Singh case such power has been restricted           F
       for achieving speedy trial. In other words, even if the
       prosecution evidence is closed in compliance with the
       directions contained in the main judgment it is still open
       to the prosecution to invoke the powers of the court under
       Section 311 of the Code. We make it clear that if                 G
       evidence of any witness appears to the court to be
       essential to the just decision of the case it is the duty
       of the court to summon and examine or recall and re-
       examine any such person."
                                                 (Emphasis added)        H
    434       SUPREME COURT REPORTS                 [2013] 7 S.C.R.


A        18. In U. T. of Dadra and Nagar Haveli and Anr. vs.
    Fatehsinh Mohansinh Chauhan - 2006 (7) SCC 529, the
    decision has been further elucidated as under in paragraph 15:-

          "15. A conspectus of authorities referred to above would
B         show that the principle is well settled that 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 of such facts which lead to a
          just and correct decision of the case, this being the
c         primary duty of a criminal court. Calling a witness or re-
          examining a witness already examined for the purpose of
          finding out the truth in order to enable the court to
          arrive at a just decision of the case cannot be
          dubbed as "filling in a lacuna in the prosecution
D         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."

                                                 (Emphasis added)
E
         19. In lddar & Ors. vs. Aabida & Anr. -AIR 2007 SC 3029,
    the object underlying under Section 311 Cr.P.C., has been
    stated as under in paragraph 11 :-

F         "11. 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
G         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
H
RAJARAM PRASAD YADAV v. STATE OF BIHAR & 435
ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
    prosecution and not that of the accused. The section is a        A
    general section which applies to all proceedings, enquiries
    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   B
    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 wider the power the greater is the           c
    necessity for application of judicial mind."

                                             (Emphasis added)

     20. In P. Sanjeeva Rao vs. State of A.P.- AIR 2012 SC
2242, the scope of Section 311 Cr.P.C. has been highlighted          D
by making reference to an earlier decision of this Court and
also with particular reference to the case, which was dealt with
in that decision in paragraphs 13 and 16, which are as under:-

    "13. Grant of fairest opportunity to the accused to prove        E
    his innocence was the object of every fair trial, observed
    this Court in Hoffman Andreas v. Inspector of Customs,
    Amritsar (2000) 10 SCC 430. The following passage is
    in this regard apposite:

    "In such circumstances, if the new counsel thought to have       F
    the material witnesses further examined, the Court could
    adopt latitude and a liberal view in the interest of
    justice, particularly when the court has unbridled
    powers in the matter as enshrined in Section 311 of
    the Code. After all the trial is basically for the               G
    prisoners and courts should afford the opportunity
    to them in the fairest manner possible."

    16. We are conscious of the fact that recall of the
    witnesses is being directed nearly four years after they
                                                                     H
    436      SUPREME COURT REPORTS
                                                        -
                                                     [2013) 7 S.C.R.


A       were examined-in-chief about an incident that is nearly
        seven years old. Delay takes a heavy toll on the human~
        memory apart from breeding cynicism about the efficacy
        of the judicial system to decide cases within a reasonably
        foreseeable time period. To that extent the apprehension
B       expressed by Mr. Rawal, that the prosecution may suffer
      . prejudice on account of a belated recall, may not be wholly
        without any basis. Having said that, we are of the opinion
        that on a parity of reasoning and looking to the
        consequences of denial of opportunity to cross-examine
c       the witnesses, we would prefer to err in favour of the
        appellant getting an opportunity rather than protecting the
        prosecution against a possible prejudice at his cost.
        Fairness of the trial is a virtue that is sacrosanct in our
        judicial system and no price is too heavy to protect that
        virtue. A possible prejudice to prosecution is not even a
D
        price, leave alone one that would justify denial of a fair
        opportunity to the accused to defend himself."

                                                   (Emphasis added)

E        21. In a recent decision of this Court in Sheikh Jumman
    vs. State of Maharashtra - (2012) 9 SCALE 80, the above
    referred to decisions were followed.

      22. Again in an unreported decision rendered by this Court
F dated 08.05.2013 in Natasha Singh vs. CBI (State) - Criminal
  Appeal No.709 of 2013, where one of us was a party, various
  other decisions of this Court were referred to and the position
  has been stated as under in paragraphs 14 and 15:

          "14. The scope and object of the provision is to enable the
G         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
H         such power may lead to undesirable results. An application
RAJARAM PRASAD YADAV v. STATE OF BIHAR & 437
ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
  under Section 311 Cr.P.C. must not be allowed only to fill        A
  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            B
  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 involved. An opportunity of rebuttal,
  however, must be given to the other party.                        c
        The power conferred under. Section 311 Cr.P.C.
  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 ~e exercised with great caution and
  circumspection.                                                   D·

         The very use of words such as 'any Court', 'at any
  stage', or '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             E
  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         F
  fact, essential to the just decision of the case.

  15, Fair trial is the main object of criminal procedure, and
  it is the duty of the court to ensure that such fairness is not
  hampered or threatened in any manner. Fair trial entails
  the interests of the accused, the victim and of the society,      G
  and therefore, fair trial includes the grant of fair and proper
  opportunities to the person concerned, and the same must
  be ensured as this is a constitutional, as well as a human
  right. Thus, under no circumstances can a person's right
  to fair trial be jeopardized. Adducing evidence in support        H
    438          SUPREME COURT REPORTS               [2013] 7 S.C.R.


A         of the defence is a valuable right. Denial of such right
          would amount to the denial of a fair trial. Thus, it is
          essential that the rules of procedure that have been
          designed to ensure justice are scrupulously followed, and
          the court must be zealous in ensuring that there is no
B         breach of the same. (Vide Ta/ab Haji Hussain v.
          Madhukar Purshottam Mondkar & Anr., AIR 1958 SC
          376; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat
          & Ors. AIR 2004 SC 3114; Zahira Habibullah Sheikh &
          Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367;
c         Ka/yani Baskar (Mrs.) v. M.S. Sampoomam (Mrs.) (2007)
          2 SCC 258; Vijay Kumar v. State of UP. & Anr., (2011)
          8 SCC 136; and Sudevanand v. State through C.B.I.
          c2012) 3 sec 387.)"

        23. From a conspectus consideration of the above
D decisions, while dealing with an application under Section 311
  Cr.P.C. read along with Section 138 of the Evidence Act, we
  feel the following principles will have to be borne in mind by the
  Courts:

E          (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
F                 under Section 311 Cr.P.C. should ensure that the
                  judgment should not be rendered on inchoate,
                  inconclusive speculative presentation of facts, as
                  thereby the ends of justice would be defeated.

G          (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.

H
RAJARAM PRASAD YADAV v. STATE OF BIHAR & 439
ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
   (d)   The exercise of power under Section 311 Cr.P.C.           A
         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.
                                                                   B
   (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.
                                                                   c
   (f)   The wide discretionary power should be exercised
         judiciously and not arbitrarily.

   (g)   The Court must satisfy itself that it was in every D
         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 Cr.P.C. simultaneously
         imposes a duty on the Court to determine the truth        E
         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      F
         because there would be a failure of justice without
         such evidence being considered.

   Q)    Exigency of the situation, fair play and good sense
         should be the safe guard, while exercising the
         discretion. The Court should bear in mind that no G
         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
                                                              H
     440         SUPREME COURT REPORTS                   [2013) 7 S.C.R.


A                  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
s·                 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
c                  improper or capricious ~xercise of such a
                   discretionary power, may lead to undesirable
                   results.

           (I)     The additional evidence must not be received as
D                  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
E
                   an opportunity of rebuttal is given to the other party.

           (n)     The power under Section 311 Cr.P.C. must
                   therefore, be invoked by the Court only in order to
                   meet the ends of justice for strong and valid reasons
F                  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
G                  concerned, must be ensured being a constitutional
                   goal, as well as a human right.

          24. Keeping the above principles in mind, when we
     examine the case on hand, at the very outset, it will have to be
H    stated that the High Court, while passing the impugned order
 RAJARAM PRASAD YADAV v. STATE OF BIHAR & 441
 ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

has completely ignored the principal objectives with which the A
provision under Section 311 Cr.P.C. has been brought into the
statute book. As rightly argued by the learned counsel for the
appellant, at the foremost when the trial was very much in the
grip of the trial Court, which had every opportunity to hear the
appellant, the State, as well as the second respondent, had not B
even bothered to verifywhether the appellant, who was facing
criminal trial was impleaded as a party to the proceedings in
the High Court. A perusal of the order discloses that the High
Court appears to have .passed orders on the very first hearing
date, unmindful of the consequences involved. The order does           c
not reflect any of the issues· dealt with by the Learned Sessions ·
Judge, while rejecting the application of the respondents in
seeking to re-examine PW~9, the second respondent herein.
Though orders could ha<ve been passed in this appeal by
remitting the matter back to the High Court, having regard to D
the time factor and since the entire material for passing final
orders, are available on record and sim;'e i:iH parties were
before us, the correctness ofthe Order.of the Sessions Judge
dated 18.11.2009, can be examined and final orders can be
passed one way· or the other'-in the present criminal appeal
                                                                    E
itself.

       25. With .that view, when we examine the basic facts, we
 find them as noted by the learned trial Judge being indisputably
 contrary to the complaint preferred by the second· respondent
·on 8.7.1999, in the police station in case Np. 71/1999, wherein       F
 offences under Section 324/307/34 IPC were reported
 alongwith Section 27 of the.Arms Act. Based on the report of
 the doctor, the chargesheet came to be filed bearing No.127/
 99, dated 31.10.1999, under Sections 324/307/34 IPC and no
 charge under Section 27 of the Arms Ac was laid. The said             G
 case was put to trial and parties were participating. In the course
 of the trial, the turn of examination of PW-9, the second
 respondent came on 16.3.2007, nearly after eight years from
 the date of occurrence. Second respondent made a categorical
 statement in his evidence that he never made any statement            H
      442       SUPREME COURT REPORTS                    [2013] 7 S.C.R.


'·Ato the police nor was he beaten on the date of occurrence, nor
   was he hit by any bullet shot. Further he made a clear statement
   that the injury sustained by him was due to the fall into the hole
   dug for constructing a latrine, where some instruments caused
   the injury sustained by him. He also made a categorical
 B statement that his sons PWs-4 and 5, Babloo and Munna
   Kumar, were not present at the place of occurrence since one
   was staying in a hostel in Hulasganj and the other was at Ranchi
   on the date and time of occurrence, namely, on 07.07.1999, at
   about 5 p.m. While the said version of the second respondent
 c was stated to have been recorded by the Court below on
   16.3.2007, and the evidence of the prosecution was stated to
   have been closed on 4.4.2007, the defence evidence seem to
   have also commenced.

         26. In that scenario, the second respondent filed the
 D present application under Section 311 Cr.P.C. on 24.8.2007,
   i.e., nearly after five months after his examination by the trial
   Court. While filing the said application, the second respondent
   claimed that his evidence tendered on 16.3.2007, was not out
   of his own free will and volition, but due to threat and coercion
 E at the instance of the accused persons, including the appellant.
   It was contended on behalf of the second respondent that the
   accused persons posed a threat by going to the extent of
   eliminating him and that such threat was meted out to him on
   15.3,2007, when he was kidnapped from his wheat field by the
 F accused, along with two unknown persons.

            27. The trial Court having examined all the above factors
      in its order dated 18.11.2009, has held as under:

            '.' .... Either at the time of his evidence in Court or
 G          subsequent to his evidence he never made any complaint
            to the court or any other officer viz. the C.J.M. or any police
            officer that accused persons had yielded any pressure
            upon him to turn hostile to the prosecution and to give a
            go by to the prosecution case. He has also argued that
 H          he did not also file any affidavit or case in this regard.
RAJARAM PRASAD YADAV v. STATE OF BIHAR & 443
ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
    Rather when on the basis of the information dated             A
    30.5.2007 given by the accused Bindeshwar Yadav
    Khizersarai Police Station case No. 78/2007 dated
    7.6.2008 was registered by the police the informant Suresh
    Prasad has filed this petition and has also got the similar
    petition filed through the Additional Public Prosecutor       B
    which has got no legs to stand and the same is fit to be
    rejected. He also filed a photocopy of the FIR to
    Khizersarai Police Station case No.78/2007 in support of
    his argument."

     28. After noting the above submissions made on behalf        C
of the accused, the trial Court held as under:

    " .... After the evidence of the informant, Suresh Prasad
    (PW-9) on 16.03.2007 the Court of Addi. Sessions Judge,
    F.T.C.-5 closed the evidence of prosecution on 04.04.2007     D
    after giving opportunity to the learned Addi. P'.P. to
    produce the remaining witness on 26.03.2007 and
    04.04.2007 which he could not do on the ground that the
    time limited by the Hon'ble Court has expired. The
     Lordships of Supreme Court have held in Dohiyabhai Vs.       E
     State, AIR 1964 SC 1563 that "Right to re-examine a
    witness arises only after the conclusion of cross
    examination and S.C. 138 says it shall be directed to the
    explanation of any part of his evidence given during cross
    examination which is capable of being construed               F
     unfavourably too his own side. The object is to give an
    opportunity to reconcile the discrepancies if any between
    the statements in examination in chief and cross
    examination or to explain any statement inadvertently made
    in cross examination or to remove any ambiguity in the        G
    deposition or suspicion cast on the evidence by cross
    examination. Where there is no ambiguity or where there
    is nothing to explain, question put in re-examination with
    the sole object of giving a change to the witness to unto
    the effect of the previous statement should not be asked
                                                                  H
    444      SUPREME COURT REPORTS                  [2013] 7 S.C.R.


          during re-examination (S.142). Section 154 is wide in its
          scope and court can permit a person calling a witness to
          but question in the nature of cross examination at the stage
          of re-examination provided it take care to give opportunity
          to the. adverse party to cross examine the witness in the
B         such case". It is clear from the afore quoted principles
          decided by the Hon'ble Apex Court and from the evidence
          of PW-9 as well as from the instant two aforesaid petitions
          filed on behalf of the PW-9 and the Additional P.P. that the
          cross examination of PW-9 does not contain any evidence
c         against his evidence in chief which could be explained or
          made clear by, re-examination of PW-9 through his re-
          examination vide Section 138 Evidence Act or Section
          311 of the Criminal Procedure Code. It is also clear that
          PW-9 had filed petition after filing of the case against him
          by the accused. As such the two instant petitions are not
D
          maintainable. However, whether the hostility of PW-9
          would have been tested on the touch stone of Section 145
          Evidence Act by examining the 1.0. as some other
          prosecution witness have supported the prosecution case.
          The evidence of the 1.0. of the case is taken would have
E         sufficed the end of justice."
                  •
       29. We find that the factors noted by the trial Court and
  the conclusion arrived fit by it were all appropriate and just,
  while deciding the application filed under Section 311 Cr.P.C.
F We do not find any bonafides in the application of the second
  respondent, while seeking· the permission of the Court under
  Section 311 Cr.P.C. for his re-examination by merely alleging
  that on the earlier occasion he turned hostile under coercion
  and threat meted out to him at the instance of the appellant and
G other accused. It was quite apparent that the complaint, which
  emanated at the instance of the appellant based on the
  subsequent incident, which took place on 30.5.2007, which
  resulted in the registration of the FIR in Khizersarai Police
  Station in case No.78/2007, seem to have weighed with the
H second respondent to come forward with the present
  RAJARAM PRASAD YADAV v. STATE OF BIHAR & 445
  ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
 application under Section 311 Cr.P.C., by way of an                       A
·afterthought. If really there was a threat to his life at the· instance
 of the appellant and the other accused, as rightly noted by the
 Court below, it was not known as to why there was no
 immediate reference to such coercion and undue influence
 meted out against him at the instance of the appellant, when              B
 he had every opportunity to mention the same to the learned
 trial Judge or to the police officers or to any prosecution
 agency. Such an indifferent stance and silence maintained by
 the second respondent herein and the categorical statement
 made before the Court below in his evidence as appreciated                c
 by the Court below was in the proper perspective, while
 rejecting the application of the respondents filed under Section
 311 Cr.P.C. In our considered opinion, the trial Court, had the
 opportunity to observe the demeanour of the second
 respondent, while tendering evidence which persuaded the trial            D
 Court to reach the said conclusion and that deserves rnore
 credence while examining the correctness of the said order
 passed by the trial Court.

      30. In the light of the above conclusion, applying the various
principles set out above, we are convinced that the order of the E
trial Court impugned before the High Court did not call for any
interference in any event behind the back of the appellant
 herein. The appeal, therefore, succeeds. The order impugned·
dated 9.12.2010, passed in Crl. M.P. 12454/2010 of the High
Court is set aside. The order of the trial Court stands restored. F
The trial Court shall proceed with the trial. The stay granted by
this Court in the order dated 7.3.2011, stands vacated. The trial
Court shall proceed with the trial from the stage it was left and
conclude the same expeditiously, preferably within three months
from the date of receipt of the copy "of this order.                 G

 R.P.                                               Appeal allowed.