SATBIR SINGHversusSTATE OF HARYANA & ORS.

                  [2023] 11 S.C.R. 723 : 2023 INSC 786



                            CASE DETAILS

                             SATBIR SINGH
                                      v.
                     STATE OF HARYANA & ORS.
                   (Criminal Appeal No. 2634 of 2023)
                            AUGUST 29, 2023
   [AHSANUDDIN AMANULLAH AND S. V. N. BHATTI, JJ.]

                              HEADNOTES

       Issue for consideration: Courts below, if justified in rejecting the
application of the appellant u/s.311, CrPC for his recall as a witness in the
trial for further examination.
      Code of Criminal Procedure, 1973 – s.311 – Power under –
Exercise of – Appellant filed complaint that the accused-ex-employees
of his company had stolen company data and used it to manufacture
equipment, which was manufactured by his company – Evidence of the
appellant was recorded before the CFSL Report came – Though, the
CFSL expert in his examination described the data found on the hard
disk(s) of the accused but there was no reference as to the comparison
of the two sets of data – Application filed by appellant u/s.311, rejected
– Legality:
      Held: Discretionary power like s.311 is to enable the Court to keep the
record straight and to clear any ambiguity regarding the evidence, whilst also
ensuring no prejudice is caused to anyone – It should be invoked when it is
essential for the just decision of the case – On facts, the request for recall
of the appellant u/s.311 was justified, as at the relevant point of time in his
initial deposition, there was no occasion for him to bring the relevant facts
relating to similarity of data before the Court, which arose after the CFSL
expert was examined – Orders of the Courts below set aside – Application
of the appellant u/s.311 for his recall to be further examined as a witness
allowed. [Paras 10-12, 14]
                                     723
724          SUPREME COURT REPORTS                         [2023] 11 S.C.R.



       LIST OF CITATIONS AND OTHER REFERENCES

      Ratanlal v. Prahlad Jat (2017) 9 SCC 340 : [2017] 8 SCR 682; Manju
Devi v. State of Rajasthan (2019) 6 SCC 203 : [2019] 6 SCR 68; Swapan
Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328
: [2019] 3 SCR 713; Harendra Rai v State of Bihar 2023 SCC OnLine SC
1023 – relied on.

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2634 of 2023.
     From the Judgment and Order dated 14.12.2021 of the High Court of
Punjab & Haryana at Chandigarh in CRMM No. 40058 of 2021.
      Appearances:
      Gaurav Agrawal, Sahil Tagotra, Chritarth Palli, Advs. for the Appellant.
    Anil Kumar Yadav, Addl. Adv. Gen., Dr. Monika Gusain, Mithilesh
Kumar Singh, Bacha Babu Mistry, Mrs. Manju Singh, Ashutosh Kumar
Singh, Rakesh Kumar Yadav, Dr. Sukhdev Sharma, Advs. for the
Respondents.

       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT
      AHSANUDDIN AMANULLAH, J.
      Heard learned counsel appearing for the parties.
      2. Leave granted.
      3. The present appeal has been filed against the order dated 14.12.2021
in CRMM No.40058/2021 (hereinafter referred to as the “Impugned
Order”) passed by the High Court of Punjab & Haryana at Chandigarh
(hereinafter referred to as the “High Court”), by which the prayer for recall
of the appellant as a witness in the trial before the Court below for further
examination has been rejected.
           SATBIR SINGH v. STATE OF HARYANA & ORS.                       725
                [AHSANUDDIN AMANULLAH, J.]

       4. The brief facts relating to the case are that the appellant made a
complaint against the accused that they, being ex-employees of his company,
had stolen company data and used such data to manufacture equipment,
which was being manufactured by the appellant’s company. During
trial, before the Report from the Central Forensic Sciences Laboratory,
Chandigarh (hereinafter referred to as “CFSL”) could come, the evidence
of the appellant was recorded. However, when the CFSL expert who had
prepared the Report was examined on 20.08.2021 by the Court, though
he described the data which was found on the hard disk(s) of the accused,
but there was no reference as to whether they were comparable to/same in
regard to what was allegedly stolen from the appellant’s company. Thus,
under the circumstances, the appellant was constrained to apply for his recall
as a witness, which was done within five days of the evidence of the CFSL
expert being recorded i.e., on 25.08.2021. The same having been rejected,
by the Trial Court and the High Court, the matter is before this Court.
       5. Learned counsel for the appellant submitted that there was no
previous occasion for him during the course of the trial to put any question
with regard to comparison of data as the CFSL expert had clearly taken a
stand that he had not submitted any report with regard to the comparison of
the two sets of data. It was submitted that the comparison of the two sets of
data was the main essence of the complaint and without the same, the trial
itself would be reduced to a farce.
     6. He further submitted that the courts erred in reckoning the delay
counting it from the date of first lodging of the complaint though the same
should have been considered from the date the cause of action arose i.e., on
20.08.2021, and the application was filed on 25.08.2021.
      7. Learned counsel for respondents no.2 to 9 submitted that the
appellant is only indulging in dilatory tactics as he has every opportunity
to make submissions, as he deems fit, during arguments which are yet to be
concluded. Learned counsel further contented that the appellant cannot be,
and should not be allowed to, fill up the lacunae left in the earlier round,
at the current stage.
     8. Learned counsel for the State joined the proceedings via video-
conferencing.
726             SUPREME COURT REPORTS                               [2023] 11 S.C.R.


       9. Section 3111 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as the “CrPC”) has engaged this Court’s attention before. We will
advert to a few decisions of recent vintage. While overturning an order of
the High Court allowing an application for recall of a witness, which was
rejected by the trial Court, this Court held as under, in Ratanlal v Prahlad
Jat, (2017) 9 SCC 340:
             ‘17. In order to enable the court to find out the truth and render
       a just decision, the salutary provisions of Section 311 are enacted
       whereunder any court by exercising its discretionary authority at any
       stage of inquiry, trial or other proceeding can summon any person as
       witness or examine any person in attendance though not summoned
       as a witness or recall or re-examine any person already examined
       who are expected to be able to throw light upon the matter in dispute.
       The object of the provision as a whole is to do justice not only from
       the point of view of the accused and the prosecution but also from the
       point of view of an orderly society. This power is to be exercised only
       for strong and valid reasons and it should be exercised with caution
       and circumspection. Recall is not a matter of course and the discretion
       given to the court has to be exercised judicially to prevent failure of
       justice. Therefore, the reasons for exercising this power should be
       spelt out in the order.
            18. In Vijay Kumar v.State of U.P.[Vijay Kumar v.State of U.P.,
       (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S)
       240], this Court while explaining scope and ambit of Section 311 has
       held as under: (SCC p. 141, para 17)
                  “17.Though Section 311 confers vast discretion upon the
       court and is expressed in the widest possible terms, the discretionary
       power under the said section can be invoked only for the ends of
       justice. Discretionary power should be exercised consistently with


1     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.
     SATBIR SINGH v. STATE OF HARYANA & ORS.                        727
          [AHSANUDDIN AMANULLAH, J.]

the provisions of [CrPC] and the principles of criminal law. The
discretionary power conferred under Section 311 has to be exercised
judicially for reasons stated by the court and not arbitrarily or
capriciously.”
     19.In Zahira Habibullah Sheikh (5) v. State of Gujarat [Zahira
Habibullah Sheikh (5) v.State of Gujarat, (2006) 3 SCC 374 : (2006)
2 SCC (Cri) 8] , this Court has considered the concept underlying
under Section 311 as under: (SCC p. 392, para 27)
            “27.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”. 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 necessity for application of judicial mind.”
     20.In State (NCT of Delhi) v. Shiv Kumar Yadav [State (NCT of
Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri)
510], it was held thus: (SCC pp. 404g-405a)
           “… Certainly, recall could be permitted if essential for the
     just decision, but not on such consideration as has been adopted
     in the present case. Mere observation that recall was necessary
     “for ensuring fair trial” is not enough unless there are tangible
     reasons to show how the fair trial suffered without recall. Recall
728          SUPREME COURT REPORTS                         [2023] 11 S.C.R.


           is not a matter of course and the discretion given to the court has
           to be exercised judiciously to prevent failure of justice and not
           arbitrarily. While the party is even permitted to correct its bona
           fide error and may be entitled to further opportunity even when
           such opportunity may be sought without any fault on the part
           of the opposite party, plea for recall for advancing justice has
           to be bona fide and has to be balanced carefully with the other
           relevant considerations including uncalled for hardship to the
           witnesses and uncalled for delay in the trial. Having regard to
           these considerations, there is no ground to justify the recall of
           witnesses already examined.”
           21. The delay in filing the application is one of the important
      factors which has to be explained in the application. In Umar
      Mohammad v. State of Rajasthan [Umar Mohammad v.State of
      Rajasthan, (2007) 14 SCC 711 : (2009) 3 SCC (Cri) 244] , this Court
      has held as under: (SCC p. 719, para 38)
                 “38. Before parting, however, we may notice that a
           contention has been raised by the learned counsel for the
           appellant that PW 1 who was examined in Court on 5-7-1994
           purported to have filed an application on 1-5-1995 stating
           that five accused persons named therein were innocent.
           An application filed by him purported to be under Section
           311 of the Code of Criminal Procedure was rejected by the
           learned trial Judge by order dated 13-5-1995. A revision
           petition was filed there against and the High Court also
           rejected the said contention. It is not a case where stricto
           sensu the provisions of Section 311 of the Code of Criminal
           Procedure could have been invoked. The very fact that such
           an application was got filed by PW 1 nine months after his
           deposition is itself a pointer to the fact that he had been won
           over. It is absurd to contend that he, after a period of four
           years and that too after his examination-in-chief and cross-
           examination was complete, would file an application on his
           own will and volition. The said application was, therefore,
           rightly dismissed.”’
           SATBIR SINGH v. STATE OF HARYANA & ORS.                       729
                [AHSANUDDIN AMANULLAH, J.]

      10. In Manju Devi v State of Rajasthan, (2019) 6 SCC 203, this Court
emphasized that a discretionary power like Section 311, CrPC is to enable
the Court to keep the record straight and to clear any ambiguity regarding
the evidence, whilst also ensuring no prejudice is caused to anyone. A note
of caution was sounded in Swapan Kumar Chatterjee v Central Bureau of
Investigation, (2019) 14 SCC 328 as under:
            ‘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
     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.
           12.Where the prosecution evidence has been closed long back
     and the reasons for non-examination of the witness earlier are not
     satisfactory, the summoning of the witness at belated stage would cause
     great prejudice to the accused and should not be allowed. Similarly,
     the court should not encourage the filing of successive applications
     for recall of a witness under this provision.’
     11. In Harendra Rai v State of Bihar, 2023 SCC OnLine SC 1023,
a 3-Judge Bench of this Court was of the opinion that Section 311, CrPC
should be invoked when ‘… it is essential for the just decision of the case.’
730            SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      12. Having considered the matter and surveyed the law supra, the Court
finds that a case for interference has been made out. Under the peculiar facts
of the present case, the request for recall of the appellant under Section 311,
CrPC was justified, as at the relevant point of time in his initial deposition,
there was no occasion for him to bring the relevant facts relating to similarity
of data before the Court, which arose after the CFSL expert was examined.
     13. Further, we find that if opportunity is given for re-examination,
respondents no.2 to 9 will not be prejudiced as they will have ample
opportunity to cross-examine the appellant. We have noted their apprehension
apropos delay and issued appropriate direction infra.
     14. In view of the above, the appeal is allowed. The orders of the
Courts below are set aside. The application of the appellant under Section
311, CrPC for his recall to be further examined as a witness stands allowed.
The same be done on a date to be fixed by the Trial Court, within six weeks
from today. The trial will be brought to conclusion within 9 months from
the date of receipt of this judgment. Pending applications are disposed of.


Headnotes prepared by:                                            Appeal allowed.
Divya Pandey