Delhi High Court: Taking view of the Supreme Court judgment in Mohanlal
Shamji Soni v. Union of India, 1991 Supp. (1) SCC 271, referring to
Section 165 of the Indian Evidence Act,1872, and Section 311 of the
Code of Criminal Procedure,1973, the Court stated that the said two
sections are complementary to each other and they confer jurisdiction on
the Judge to act in aid of justice. It is a settled principle that
Court must discharge its statutory functions (discretionary or
obligatory) according to law in dispensing justice because the duty of a
Court is not only to do justice but to ensure that it is being done.
The Court held that a 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 in
such matter is dictated by exigency of the situation and fair play,
which suggest that requirements of justice command the examination
of any person, depending on the facts athend circumstances of a case.
If the Court should come to 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, and if such an action on its part is justified, then the Court must exercise such power.
The issue involved in this case was whether the person concerned was a material witness and whether the respondent should be permitted to examine him in exercise of jurisdiction under Section 311 Cr.P.C. The Court held that bare reading of the section reveals that it is of wide amplitude and if there is any negligence or mistake by not examining material witnesses, the court's function to render just decision by examining such witnesses at any stage is not impaired. It was also said that the section consists of two parts: (i) discretion of the court to examine a witness at any stage, (ii) the mandatory portion compelling the court to examine a witness if his evidence appears to be essential to the justice. The second part of the section is not discretionary but obligatory and binding on the Court to take necessary steps if fresh evidence is essential to be justified, being essential to an active and alert mind and not to one which is bent to abandon or abdicate. The object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case.
[Inderjeet Kaur Kalsi v. NCT of Delhi, CRL.M.C. 4504 of 2013, decided on November 27, 2013]
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If the Court should come to 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, and if such an action on its part is justified, then the Court must exercise such power.
The issue involved in this case was whether the person concerned was a material witness and whether the respondent should be permitted to examine him in exercise of jurisdiction under Section 311 Cr.P.C. The Court held that bare reading of the section reveals that it is of wide amplitude and if there is any negligence or mistake by not examining material witnesses, the court's function to render just decision by examining such witnesses at any stage is not impaired. It was also said that the section consists of two parts: (i) discretion of the court to examine a witness at any stage, (ii) the mandatory portion compelling the court to examine a witness if his evidence appears to be essential to the justice. The second part of the section is not discretionary but obligatory and binding on the Court to take necessary steps if fresh evidence is essential to be justified, being essential to an active and alert mind and not to one which is bent to abandon or abdicate. The object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case.
[Inderjeet Kaur Kalsi v. NCT of Delhi, CRL.M.C. 4504 of 2013, decided on November 27, 2013]
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