Article On Section - 165 of E. Act PDF

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MATERIALS OF IMPORTANT
DECISIONS FOR READY
REFERENCE ON SECTION –
165 OF EVIDENCE ACT AND
SECTION – 311 OF
CRIMINAL PROCEDURE
CODE
Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

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It is cardinal rule in the law of evidence that the best

available evidence should be brought before the court to
prove a fact or the points in issue.
section – 165 of Evidence Act is intended to arm the Judge

with the most extensive power possible for the purpose of
getting at the truth. There is a danger in some cases that the
whole truth may not come out before the Court. The Judge,
in order to discover, or to obtain proper proof of relevant
facts, may exercise very wide powers indeed; but they all
pivot upon the ascertainment of relevant facts.
SIR JAMES STEPHEN, while presenting the report of the Select

Committee, at the time of passing of this enactment (Indian
Evidence Act) observed ; “It is absolutely necessary that the
judge should not only hear what is put before him by others,
but that he should ascertain by his own inquiries how the
facts actually stand. In order to do this, it will frequently be

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necessary for him to go into matters which are not

themselves relevant to the matters in issue, but may lead to
something that is and it is in order to arm judges with express
authority to do this that Section 165, which has been so much
objected to, has been framed. ”
The section – 165 of Evidence Act is as under :
Section – 165 : Judge's power to put questions or order production :
The Judge may, in order to discover or to obtain proper proof of relevant facts,
ask any question he pleases, in any form, at any time, of any witness, or of the
parties, about any fact relevant or irrelevant; and may order the production
of any document or thing; and neither the parties nor their agents shall be
entitled to make any objection to any such question or order, nor, without
the leave of the Court, to cross-examine any witness upon any answer given
in reply to any such question:
Provided that the judgment must be based upon facts declared by this Act to
be relevant, and duly proved :
Provided also that this section shall not authorize any Judge to compel any
witness to answer any question, or to produce any document which such

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witness would be entitled to refuse to answer or produce under Section 121

to Section 131 , both inclusive, if the question were asked or the document
were called for by the adverse party; nor shall the Judge ask any question
which it would be improper for any other person to ask under Section 148 or
Section 149 , nor shall he dispense with primary evidence of any document
except in the case hereinbefore excepted.
In the said section, the very wide powers conferred to the Judge with three
exceptions.
Very wide powers are :
The Judge may,
1. in order to discover or to obtain proper proof of relevant facts,
2. ask any question he pleases, in any form, at any time, of any witness, or
3. of the parties about any fact relevant or irrelevant; and
4. may order the production of any document or thing; and
5. neither the parties nor their agents shall be entitled to make any
objection to any such question or order;
6. nor, without the leave of the Court, to cross examine any witness upon
any answer given in reply to any such question:
Exceptions are :
This section shall not authorize any Judge to compel -
1. any witness to answer any question, or

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2. to produce any document which such witness would be entitled to

refuse to answer or produce under section – 121 to 131, both inclusive,
3. nor shall Judge ask any question which it would be improper for any
other person to ask under section 148 or 149;
4. nor shall be dispense with primary evidence of any document, except in
the cases hereinbefore excepted.
The Landmark Judgment of Hon’ble Supreme Court in the case of ZAHIRA

HABIBULLA H. SHEIKH VERSUS STATE OF GUJARAT, AIR(SC) 2004 0 3114, the
Hon’ble Supreme Court has after consideration of several judgments held that
–
“ 15. IN 1846, in a judgment which Lord Chancellor Selborne would later

describe as "one of the ablest judgments of one of the ablest judges who
ever sat in this court". Vice-Chancellor Knight Bruce said :
"The discovery and vindication and establishment of truth are main

purposes certainly of the existence of Courts of Justice, still, for the
obtaining of these objects, which, however valuable and important,
cannot be usefully pursued without moderation, cannot be either usefully
or creditably pursued unfairly or gained by unfair means, not every
channel is or ought to be open to them. The practical inefficacy of torture
is not, suppose, the most weighty objection to that mode of examination.

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Truth, like all other good things, may be loved unwisely - may be pursued
too keenly - may cost too much."
The Vice-Chancellor went on to refer to paying "too great a price.... for

truth". This is a formulation which has subsequently been frequently
invoked, including by Sir Gerard Brennan. On another occasion, in a joint
judgment of the High Court, a more expansive formulation of the
proposition was advanced in the following terms:
"The evidence has been obtained at a price which is unacceptable having

regard to prevailing community standards."
Restraints on the processes for determining the truth are multi-faceted.

They have emerged in numerous different ways, at different times and
affect different areas of the conduct of legal proceedings. By the
traditional common law method of induction there has emerged in our
jurisprudence the principle of a fair trial. Oliver Wendell Holmes described
the process:
"It is the merit of the common law that it decides the case first and
determines the principle afterwards.... It is only after a series of
determination on the same subject-matter, that it becomes necessary to
"reconcile the cases", as it is called, that is, by a true induction to state the
principle which has until then been obscurely felt. And this statement is

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often modified more than once by new decisions before the abstracted
general rule takes its final shape. A well settled legal doctrine embodies
the work of many minds, and has been tested in form as well as substance
by trained critics whose practical interest is to resist it at every step."
16. THE principle of fair trial now informs and energises many areas of the
law. It is reflected in numerous rules and practices. It is a constant,
ongoing development process continually adapted to new and changing
circumstances, and exgencies of the situation - peculiar at times and
related to the nature of crime, persons involved - directly or operating
behind, social impact and societal needs and even so many powerful
balancing factors which may come in the way of administration of
criminal justice system.
As will presently appear, the principle of a fair trial manifests itself in

virtually every aspect of our practice and procedure, including the laws of
evidence. There is, however, an overriding and, perhaps, unifying
principle. As Deane J put it:
"It is desirable that the requirement of fairness be separately identified

since it transcends the content of more particularized legal rules and
principles and provides the ultimate rationale and touchstone of the rules
and practices which the common law requires to be observed in the
administration of the substantive criminal law."

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This Court has often emphasised that in a criminal case the fate of the
proceedings cannot always be left entirely in the hands of the parties,
crimes being public wrongs in breach and violation of public rights and
duties, which affect the whole community as a community and harmful to
the society in general. The concept of fair trial entails familiar
triangulation of interests of the accused, the victim and the society and it
is the community that acts through the State and prosecuting agencies.
Interests of society is not to be treated completely with disdain and as
persona non grata. Courts have always been considered to have an over-
riding duty to maintain public confidence in the administration of justice
often referred to as the duty to vindicate and uphold the "majesty of the
law". Due administration of justice has always been viewed as a
continuous process, not confined to determination of the particular case,
protecting its ability to function as a Court of law in the future as in the
case before it. If a criminal Court is to be an effective instrument in
dispensing justice, the Presiding Judge must cease to be a spectator and
a mere recording machine by becoming a participant in the trial evincing
intelligence, active interest and elicit all relevant materials necessary for
reaching the correct conclusion, to find out the truth, and administer
justice with fairness and impartiality both to the parties and to the
community it serves. Courts administering criminal justice cannot turn a
blind eye to vexatious or oppressive conduct that has occurred in

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relation to proceedings, even if a fair trial is still possible, except at the

risk of undermining the fair name and standing of the judges as
impartial and independent adjudicators.
17. THE principles of rule of law and due process are closely linked with
human rights protection. Such rights can be protected effectively when a
citizen has recourse to the Courts of law. It has to be unmistakably
understood that a trial which is primarily aimed at ascertaining truth has
to be fair to all concerned. There can be no analytical, all comprehensive
or exhaustive definition of the concept of a fair trial, and it may have to
be determined in seemingly infinite variety of actual situations with the
ultimate object in mind viz. whether something that was done or said
either before or at the trial deprived the quality of fairness to a degree
where a miscarriage of justice has resulted. It will not be correct to say
that it is only the accused who must be fairly dealt with. That would be
turning Nelson's eyes to the needs of the society at large and the victims
or their family members and relatives. Each one has an inbuilt right to be
dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice
to the accused as is to the victim and the society. Fair trial obviously
would mean a trial before an impartial Judge, a fair prosecutor and
atmosphere of judicial calm. Fair trial means a trial in which bias or
prejudice for or against the accused, the witnesses, or the cause which is
being tried is eliminated. If the witnesses get threatened or are forced to
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give false evidence that also would not result in a fair trial. THE failure to
hear material witnesses is certainly denial of fair trial.
A criminal trial is a judicial examination of the issues in the case and its
purpose is to arrive at a judgment on an issue as a fact or relevant facts
which may lead to the discovery of the fact issue and obtain proof of such
facts at which the prosecution and the accused have arrived by their
pleadings; the controlling question being the guilt or innocence of the
accused. Since the object is to mete out justice and to convict the guilty
and protect the innocent, the trial should be a search for the truth and not
a bout over technicalities, and must be conducted under such rules as will
protect the innocent, and punish the guilty. The proof of charge which has
to be beyond reasonable doubt must depend upon judicial evaluation of
the totality of the evidence, oral and circumstantial and not by an isolated
scrutiny.
Failure to accord fair hearing either to the accused or the prosecution

violates even minimum standards of due process of law. It is inherent in
the concept of due process of law, that condemnation should be rendered
only after the trial in which the hearing is a real one, not sham or a mere
farce and pretence. Since the fair hearing requires an opportunity to
preserve the process, it may be vitiated and violated by an overhasty
stage-managed, tailored and partisan trial.

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20. LEGISLATIVE measures to emphasise prohibition against tampering

with witness, victim or informant have become the imminent and
inevitable need of the day. Conducts which illegitimately affect the
presentation of evidence in proceedings before the Courts have to be
seriously and sternly dealt with. There should not be any undue anxiety
to only protect the interest of the accused. That would be unfair as noted
above to the needs of the society. On the contrary, the efforts should be
to ensure fair trial where the accused and the prosecution both get a fair
deal. Public interest in the proper administration of justice must be given
as much importance if not more, as the interests of the individual
accused. In this courts have a vital role to play.
The Courts have to take a participatory role in a trial. They are not
expected to be tape recorders to record whatever is being stated by the
witnesses. Section 311 of the Code and Section 165 of the Evidence Act
confer vast and wide powers on Presiding Officers of Court to elicit all
necessary materials by playing an active role in the evidence collecting
process. They have to monitor the proceedings in aid of justice in a
manner that something, which is not relevant, is not unnecessarily
brought into record. Even if the prosecutor is remiss in some ways, it can
control the proceedings effectively so that ultimate objective i.e. truth
is arrived at. This becomes more necessary where the Court has reasons
to believe that the prosecuting agency or the prosecutor is not acting in
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the requisite manner. The Court cannot afford to be wishfully or pretend

to be blissfully ignorant or oblivious to such serious pitfalls or dereliction
of duty on the part of the prosecuting agency. The prosecutor who does
not act fairly and acts more like a counsel for the defence is a liability to
the fair judicial system, and Courts could not also play into the hands of
such prosecuting agency showing indifference or adopting an attitude
of total aloofness.
The power of the Court under Section 165 of the Evidence Act is in a way
complementary to its power under Section 311 of the Code. The section
consists of two parts i.e. (i) giving a discretion to the Court to examine
the witness at any stage and (ii) the mandatory portion which compels
the Court to examine a witness if his evidence appears to be essential to
the just decision of the Court. Though the discretion given to the Court
is very wide, the very width requires a corresponding caution. In Mohan
Lai v. Union of India (1991 Supp. (1) SCC 271) this Court has observed,
while considering the scope and ambit of Section 311, that the very
usage of the word such as, 'any Court' 'at any stage', or 'any enquiry or
trial or other proceedings' 'any person' and 'any such person' clearly
spells out that the Section has expressed in the widest possible terms
and do not limit the discretion of the Court in any way. However, as
noted above, the very width requires a corresponding caution that the
discretionary powers should be invoked as the exigencies of justice
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require and exercised judicially with circumspection and consistently

with the provisions of the Code. The second part of the section does not
allow any discretion but obligates and binds the Court to take necessary
steps if the fresh evidence to be obtained is essential to the just decision
of the case - 'essential', to an active and alert mind and not to one which
is bent to abandon or abdicate. 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. The power is exercised and the
evidence is examined neither to help the prosecution nor the defence, if
the Court feels that there is necessity to act in terms of Section 311 but
only to subserve the cause of justice and public interest. It is done with
an object of getting the evidence in aid of a just decision and to uphold
the truth.
22. ULTIMATELY, as noted above, ad nauseam the duty of the Court is

to arrive at the truth and subserve the ends of justice. Section 311 of the
Code does not confer any party any right to examine, cross-examine and
re-examine any witness. This is a power given to the Court not to be
merely exercised at the bidding of any one party/person but the powers
conferred and discretion vested are to prevent any irretrievable or
immeasurable damage to the cause of society, public interest and
miscarriage of justice. Recourse may be had by Courts to power under
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this section only for the purpose of discovering relevant facts or obtaining
proper proof of such facts as are necessary to arrive at a just decision in
the case.”
The Hon’ble Supreme Court has held in the case of RITESH TEWARI VERSUS
STATE OF UTTAR PRADESH, AIR(SC) 2010 – 3823 :
“ Section 165 of the Evidence Act, 1872 empowers the Court to ask
questions relevant, irrelevant, related or unrelated to the case to the party
to ascertain the true facts. The party may not answer the question but it
is not permitted to tell the Court that the question put to him is irrelevant
or the facts the court wants to ascertain are not in issue. Exercise of such
a power is necessary for the reason that the judgment of the court is to be
based on relevant facts which have been duly proved. A court in any case
cannot admit illegal or inadmissible evidence for basing its decision. It is
an extraordinary power conferred upon the court to elicit the truth and to
act in the interest of justice. A wide discretion has been conferred on the
court to act as the exigencies of justice require. Thus, in order to discover
or obtain proper proof of the relevant facts, the court can ask the question
to the parties concerned at any time and in any form. "Every trial is voyage
of discovery in which truth is the quest". Therefore, power is to be
exercised with an object to subserve the cause of justice and public
interest, and for getting the evidence in aid of a just decision and to uphold

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the truth. The purpose being to secure justice by full discovery of truth and
an accurate knowledge of facts, the court can put questions to the parties,
except those which fall within exceptions contained in the said provision
itself. (Vide : Jamatraj Kewalji Govani Vs. State of Maharashtra, AIR 1968
SC 178; and Zahira Habibulla H. Sheikh and Anr. Vs. State of Gujarat and
Ors. (2004) 4 SCC 158.
In the Case of SIDHARTHA VASHISHT ALIAS MANU SHARMA VERSUS STATE

(NATIONAL CAPITAL TERRITORY OF DELHI) AIR 2010 (SC) 2352, the Hon’ble
Supreme Court has held that
It is thus important for us to address the role of a prosecutor, disclosure

requirements if placed by the prosecutor and the role of a judge in a
criminal trial.
A public prosecutor is appointed under Section 24 of the Code of Criminal

Procedure. Thus, Public Prosecutor is a statutory office of high regard. This
Court has observed the role of a prosecutor in Shiv Kumar v. Hukam Chand
and Anr., (1999) 7 SCC 467 as follows:
"13. From the scheme of the Code the legislative intention is manifestly
clear that prosecution in a Sessions Court cannot be conducted by any one
other than the Public Prosecutor. The legislature reminds the State that
the policy must strictly conform to fairness in the trial of an accused in a

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Sessions Court. A Public Prosecutor is not expected to show a thirst to

reach the case in the conviction of the accused somehow or the other
irrespective of the true facts involved in the case. The expected attitude of
the Public Prosecutor while conducting prosecution must be couched in
fairness not only to the Court and to the investigating agencies but to the
accused as well. If an accused is entitled to any legitimate benefit during
trial the Public Prosecutor should not scuttle/conceal it. On the contrary,
it is the duty of the Public Prosecutor to winch it to the force and make it
available to the accused. Even if the defence counsel overlooked it, Public
Prosecutor has the added responsibility to bring it to the notice of the
Court if it comes to his knowledge, A private counsel, if allowed frees hand
to conduct prosecution would focus on bringing the case to conviction
even if it is not a fit case to be so convicted. That is the reason why
Parliament applied a bridle on him and subjected his role strictly to the
instructions given by the Public Prosecutor."
This Court has also held that the prosecutor does not represent the
investigation agencies, but the State. This Court in Hitendra Vishnu
Thakur and Others v. State of Maharashtra and Others, (1994) 4 SCC 602
held:
"22. ... A public prosecutor is an important officer of the State Govt. and
is appointed by the State under the CrPC. He is not a part of the

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investigating agency. He is an independent statutory authority. The

public prosecutor is expected to independently apply his mind to the
request of the investigating agency before submitting a report to the
court for extension of time with a view to enable the investigating
agency to complete the investigation. He is not merely a post office or a
forwarding agency. A public prosecutor may or may not agree with the
reasons given by the investigating officer for seeking extension of time
and may find that the investigation had not progressed in the proper
manner or that there has been unnecessary, deliberate or avoidable
delay in completing the investigation"
Therefore, a public prosecutor has wider set of duties than to merely

ensure that the accused is punished, the duties of ensuring fair play in the
proceedings, all relevant facts are brought before the court in order for
the determination of truth and justice for all the parties including the
victims. It must be noted that these duties do not allow the prosecutor to
be lax in any of his duties as against the accused.
35. IT is also important to note the active role which is to be played by

a court in a criminal trial. The court must ensure that the prosecutor is
doing his duties to the utmost level of efficiency and fair play. This
Court, in Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors.,

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(2004) 4 SCC 158, has noted the daunting task of a court in a criminal
trial while noting the most pertinent provisions of the law.”
In the Case of STATE OF GUJARAT VERSUS JADAV AND OTHERS, GLR 2016 (3)
2120, the Hon’ble High Court Coram :- M. R. SHAH, Z. K. SAIYED JJ. has held
that –
At the outset it is required to be noted that from the impugned judgment

and order of acquittal passed by the learned trial Court it appears that
because of the settlement between the accused and the parents of the
deceased (victim), the parents turned hostile and therefore, without
considering other evidences on record, in haste and hurry, the learned trial
Court has concluded the trial and has acquitted the original accused which
has resulted into miscarriage of justice. From the impugned judgment and
order passed by the learned trial Court it appears that the learned trial
Court has disposed of the trial and acquitted the accused in haste and
hurry and thereby the learned Presiding Judge has failed to perform his
duty.
7.1 From the record it appears that P.W. -1, P.W. -2 and P.W. -3 whose
depositions were recorded on a single day i.e. on 04.06.2007, turned
hostile. It is required to be noted that in the cross -examination, P.W. -1
specifically admitted that there is a settlement between him and the
accused. When the material witnesses turned hostile and more

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particularly when the P.W. -1 - original complainant who gave the

complaint denied having given any complaint, considering the fact that
the offence involved was very serious and heinous crime against the
woman, the learned Presiding Judge ought to have become more vigilant
and ought to have made all efforts to find out the truth.
7.2 Even in the present case it appears that even the learned Public
Prosecutor who appeared on behalf of the State failed to perform his duty.
It is required to be noted that despite the fact that in the charge -sheet
number of other witnesses were also cited, by examining them, all efforts
ought to have been made by the prosecution to prove the case against the
accused, despite the fact that 3 material witnesses - parents and uncle of
the deceased turned hostile, however for whatever reason the learned
Public Prosecutor gave the application to drop other witnesses and did not
examine any other witnesses and thereafter the learned trial Court has
acquitted all the accused for the serious offences which are not against
the individual only but against the society also, solely on the ground that
the witnesses who are examined do not support the case of the
prosecution. Thus, both the learned Presiding Judge as well as the learned
Public Prosecutor seem to have failed to perform their duties i.e. to reach
to the truth and to punish the guilty. The role of the Presiding Judge and
the role of the Public Prosecutor came to be considered by the Division
Bench of this Court in the case of Patel Maheshbhai Ranchhodbhai and
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Ors. (Supra). In a similar set of facts and circumstances dealing with a

case where some of the witnesses were declared hostile and despite that
the learned Public Prosecutor submitted the application to drop other
witnesses and ignoring even the dying declaration, which was proved, the
learned trial Court acquitted the accused and to that the Division Bench in
paras 48 to 55 has observed and held as under:
"48. We are at pain to observe that the role of prosecuting agency during
the trial along with the Trail Judge appears to be dubious. We find that
besides Exhibit -14 dying declaration there was available evidence on
record to prove the factum of cruelty and death of Renukaben, but was
not brought on record by the prosecuting agency, instead, all concerned
were in hurry to finish the case in a day. After framing of the charge on
7th of January, 2005, witnesses came to examined on the same day,
further statements of accused were recorded, arguments were heard and
judgment impugned was delivered by Trial Judge on the same day. As
stated here -in -above in para -2, on 1.1.2005, the prosecution requested
to issue witness summons upon witnesses shown in the charge-sheet at
Sl. No. 1 to 6 and 16 to 23 and the witness summons were also issued.
However, on 07.1.2005, in all only five witnesses came to be examined by
the Trial Court, and out of which, two witnesses, who were the relatives
of the deceased i.e. maternal uncle and maternal aunt of the deceased,
turned hostile. Still, the prosecution submitted closing purshis stating that
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besides whatever evidence was adduced by the prosecution, it did not

intend to lead further evidence and declared the evidence of the
prosecution to be over and thereby dropped the other witnesses. It is
prerogative of the prosecution to whom they should examine, but we are
at pain to observe that neither the learned Trial Judge nor the learned APP
endeavoured to find out the truth by probing further the case. Instead, as
soon as, the witnesses, who were the relatives of the deceased, turned
hostile, the Trial Court as well as the learned APP shut the doors towards
their pious and prime duty to search for the truth and the trial was closed
in extreme hurry. It is not the law that when some of the witnesses turned
hostile, the court should abandon the search for the truth and the learned
APP should become oblivious to put forward the whole prosecution case
and instead of adducing further evidence for search of truth, simply giving
purshis in the case to lock the whole case in a cupboard so as to ignore
completely the heinous crime like abetting a helpless woman (wife) to
commit suicide, committed under the nose of the society. It appears that
the Trial Court has failed to perform its duties to reach to the real truth
and to convict the accused. It is in the interest of justice that the trial
should be conducted on day-to -day basis, but at the same time it must be
seen that justice must not be victimized at the unscrupulous treatment to
the trial by prosecuting agency. It becomes the duty of all concerned to
bring on record sufficient evidence. Fortunately, in this case, valuable

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piece of evidence i.e. dying declaration could be proved, beyond doubt and
ultimately the case is proved.
49. True that criminal justice deals with complex human problems and
diverse human beings. On account of relations, witnesses may turn hostile
and witnesses may resile when search for the truth is vigorously
undertaken through instrumentality of criminal law. In trials, therefore,
it becomes the duty of the Judge presiding over a criminal trial, to
appreciate the evidence from all corners, and if the evidence is not
produced, though available, then, the same could be produced. The
courts exist for doing justice to the persons who are affected. As afore -
stated, the crimes of such nature like murder are affecting the society. The
court is not merely to act as a tape recorder recording the evidence,
overlooking the object of trial i.e. to get at the truth. The courts cannot be
oblivious to the active role to be played, for which there is not only ample
scope but sufficient powers are conferred under the Code. The court has a
greater duty and responsibility to render justice in a case where it appears
that the role of the prosecuting agency itself is dubious. The courts are
expected to perform its duties and functions effectively and true to the
spirit with which the courts are sacredly entrusted the dignity and
authority and an alert judge actively participating in court proceedings
with a firm grip on oars enables the trial smoothly to reach at the truth.
The interest of the parties in conducting the trial in such a way so as to
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gain success is understandable, but the obligation of the Presiding Judge

to hold the proceedings as to achieve the dual objectives i.e. search for
truth and delivering pure justice cannot be subdued. Wherever necessary,
even courts are empowered to curb perjury. This is a fact that most of the
witnesses coming in the courts despite taking oath, make false statements
to suit the interest of the parties. Effective and stern action is required to
be taken on such a stand, which may be taken upon the witnesses. The
mere existence of penal provisions to deal with perjury would be a cruel
joke with the society unless the courts stop to take evasive recourse
despite proof of the commission of the offence.
50. We find to our utter shock that so far as this Appeal is concerned, the
role of prosecuting agency also appears stigmatic. Witnesses are the eyes
and ears of the justice.
If the witnesses are incapacitated from acting as eyes and ears, the trial
gets putrefied and paralyzed and cannot be termed as a fair trial. It does
not appreciable in the present case, why, in spite of the fact that, many
witnesses were issued witness summons at the instance of the
prosecution, subsequently, only five witnesses came to be examined, out
of which, two witnesses, the relatives of the deceased, turned hostile, the
learned APP submitted closing purshis, dropping the other witnesses by
submitting that the prosecution does not want to lead any further

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evidence. It is the cardinal principle of law of evidence that the best

available evidence should be brought before the court. It is also required
to be noted that the prosecution submitted a list of 17 documents to be
produced and exhibited. However, the learned Trial Judge exhibited only
four documents and other documents which are vital or important
documents, were not exhibited by the learned Trial Judge, in spite of that,
the learned APP did not raise any objection and was satisfied with
exhibiting of only four documents. Undoubtedly, therefore, the role
attributed to the learned APP in this trial has been eschewed in hurry of
disposal of the trial or for some other reasons, which has resulted in failure
of justice.
51. It is known and cardinal principle of evidence that even if a major

portion of evidence is found to be deficient in case residue is sufficient to
prove guilt of an accused, the conviction can be maintained. It is the duty
of the court to separate grain from chaff in coming to the conclusion of
truth. It also becomes the duty of the court to take into consideration of
relevant evidence available and courts are empowered to produce on
record such evidence if the prosecution failed in their duties to produce
such evidence. The conclusion of a criminal trial must be the outcome of
cool deliberations and the scanning of the material by the informed mind
of the Judge that leads to determination. How can a prosecuting agency

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or concerned Trial judge afford to be so perfunctory in dealing with the

criminal trial of grave crime of murder.
54. K. Lack of 'robust judging' has stated in criminal courts need of the
hour is 'robust judging'. The trial judge is the linchpin in every case, and
he has also its eyes and ears. He is not merely a recorder of facts but a
purveyor of all evidence, oral and circumstantial. It is said by him that a
good trial judge needs to have a 'third ear' i.e. hear and comprehend what
is not said. When a material eye witness, whose beloved relative has been
murdered and who has identified the accused in his police statement says
in his/her evidence at the trial that he cannot recall the faces or names of
anyone, this must obviously excite suspicion in the mind of a truth seeking
judge; he (or she) must probe further and question the witness (even if the
prosecutor does not do so), as to why he had so stated before the police
shortly after the incident and whether he had met with anybody before
giving evidence in court or had been tutored or compelled to say what had
been just deposed to. No new law is required for this. Only common sense
and acquaintance with the facts of life.
After having found that the witnesses who were already examined, the
relatives of the of the deceased turned hostile on 7.1.2005, the learned
Sessions Judge ought to have been alerted. The learned Sessions Judge,
on its own, ought to have exercised the powers under Sec. 311 of the Code

Page 26 of 54
of Criminal Procedure and examined those witnesses who were already

issued the summon witnesses. As stated here -in -above, not only the
learned Sessions Judge has failed to exercise powers under Sec. 311 of the
Code of Criminal Procedure, but even has not bothered to exhibit the
relevant documentary evidences which were already on record, which if
exhibited, would have been fatal to the evidence. The learned Sessions
Judge, ought to have appreciated that that his duty was to find out the
truth of what actually occurred.
55. Thus, in the present case, we found that prime and pious duty of the
Trial Court to appreciate the evidence for the search of truth is
abandoned. However, in hurry of disposal of the case or for some other
reason, the learned Sessions Judge has disposed of the trial and
acquitted the accused."
It is reported that the aforesaid decision of the Division Bench has been
confirmed by the Hon'ble Supreme Court in its decision reported in :
(2014) 14 SCC 657. While confirming the aforesaid decision of the Division
Bench, the Hon'ble Supreme Court has observed that Courts are accepted
to perform their duties and functions effectively and true to the spirit with
which the Courts are sacredly entrusted with dignity and authority. It is
further observed that an alert Judge actively participating in Court

Page 27 of 54
proceedings with a firm grip on oars enables the trial smoothly to reach
at the truth.
7.3 In the case of Ashwinkumar Ranchhodbhai Patel (Supra), the Division

Bench of this Court has deprecated such "shutter down" approach
adopted by the prosecuting agency resulting in failure of justice. In the
said decision the Division Bench also discussed and considered the role of
the Presiding Judge. In paras 6 to 10 and 14 the Division Bench has
observed and held as under:
"6. Crimes in society are real and concrete incident actually occurs. Crimes
are not fancy or imagination, which courts are called upon to decide.
Therefore, greater responsibilities are to be shouldered by courts while
dispensation of justice. Prosecuting agency and investigation agency are
also important factor in criminal justice system. Each component must do
justice to its role in doing justice to aggrieved persons. The crimes are not
affecting the individual, but influences the society as a whole and,
therefore, the grave crimes are not against individual but against the
society. The law regulates social interests, arbitrates conflicting claims
and demands. Security of persons and property of the people is an
essential function of the State. This could be achieved through
instrumentality of criminal law. The contagion of lawlessness would
undermine the social order and lay it in ruins. Protection of society and

Page 28 of 54
stamping out criminal proclivity must be the object of law, which must be
achieved through courts of law through the role assigned to a court. Law
as a cornerstone of the edifice of order, should meet the challenges
confronting the society.
7. We are at pain to observe that neither the learned Trial Judge nor the
learned APP endeavoured to find out the truth by probing further the case.
Instead, as soon as the witnesses, who were eye witnesses, turned hostile,
the Trial Court as well as the learned APP shut the doors towards their
pious and prime duty to search for the truth and the trial was closed in
extreme hurry. We find that the Investigating Officer, who is named in the
charge sheet, could not be examined by the learned APP nor such vigilance
could be shown by the Trial Court to reach at the truth. It is not the law
that when eye witness turns hostile, the courts should abandon the search
for the truth and learned APP should become oblivious to put forward the
whole prosecution case and instead of adducing further evidence for
search of truth, simply giving purshis in the case to lock the whole case in
a cup board so as to ignore completely the heinous crime like murder
committed under the nose of the society. The Investigating Officer could
have been examined to throw light on the circumstances of the case and
could have proved the case beyond reasonable doubt despite eye
witnesses turned hostile. Necessary it is to mention that the Investigating
Officer draw panchnamas by which iron bar seized from the house of the
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accused, contained bloodstains, and according to Forensic Science

Laboratory, those bloodstains contained the blood group of the deceased.
This is not the end but shirt and pant worn by the accused when he was
arrested and seized by the Investigating Officer through a panchnama,
contained bloodstains, which according to Forensic Science Laboratory
report, contained the blood group of the deceased. Learned Trial Judge
and prosecuting agency, however, did not bring this evidence on record
and adopted "shutters down" approach. It is nowhere so defined in any
criminal law of the country that evidence means the evidence of eye
witnesses only. Evidence may be in any shape, and in search for the truth,
this evidence must be appreciated by the courts of law as evidence in
criminal trial to come to the truth. In this case, the learned Trial Judge as
well as learned APP both shut their eyes to their duties to explore the
truth. The worst thing which we find is that the Forensic Science
Laboratory report which is produced by the prosecution requires to be
exhibited without formal proof under Ss. 293 or 294 of the Criminal
Procedure Code, is neither exhibited by the Trial Court nor any endeavour
was made by the learned APP. Besides, we find from the record that
accused himself through his Advocate preferred an Application at Exhibit
-7 on 30th of October, 2004, wherein the accused prayed before the Court
that in the said case, accused also got injuries and the papers relating to
the injuries of the accused be called for and be placed on record as the

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documents were important for the defence of the accused. The learned
Trial Judge passed an order dated 30th of October, 2004 that the
application was kept for hearing. However, it appears that, no further
orders came to be passed below such application. Perhaps, a judicial
adjudication after due consideration, could have assisted the Trial Court
to arrive at the truth of the matter, which is the sole purpose of the
criminal trial.
8. True that criminal justice deals with complex human problems and
diverse human beings. On account of relations, witnesses may turn
hostile and witnesses may resile when search for the truth is vigorously
undertaken through instrumentality of criminal law. In trials, therefore, it
becomes the duty of the Judge presiding over a criminal trial, to
courts exist for doing justice to the persons who are affected. As afore-
stated, the crimes of such nature like murder are affecting the society.
The court is not merely to act as a tape recorder recording the evidence,
overlooking the object of trial i.e. to get at the truth. The courts cannot
be oblivious to the active role to be played, for which there is not only
ample scope but sufficient powers are conferred under the Code. The
court has a greater duty and responsibility to render justice in a case
where it appears that the role of the prosecuting agency itself is dubious.
Page 31 of 54
The courts are expected to perform its duties and functions effectively
and true to the spirit with which the courts are sacredly entrusted the
dignity and authority and an alert judge actively participating in court
proceedings with a firm grip on oars enables the trial smoothly to reach
at the truth. The interest of the parties in conducting the trial in such a
way so as to gain success is understandable, but the obligation of the
Presiding Judge to hold the proceedings as to achieve the dual objectives
i.e. search for truth and delivering pure justice cannot be subdued.
Wherever necessary, even courts are empowered to curb perjury. This is
a fact that most of the witnesses coming in the courts despite taking oath,
make false statements to suit the interest of the parties. Effective and
stern action is required to be taken on such a stand, which may be taken
upon the witnesses. The mere existence of penal provisions to deal with
perjury would be a cruel joke with the society unless the courts stop to
take evasive recourse despite proof of the commission of the offence.
9. We find to our utter shock that so far as this Appeal is concerned, the
role of prosecuting agency also appears stigmatic. Witnesses are the eyes
and ears of the justice. If the witnesses are incapacitated from acting as
eyes and ears, the trial gets putrefied and paralysed and cannot be
termed as a fair trial. The incapacitation may be due to various factors. In
this case, it may be the relations of the parties because at one hand, the
accused was the cousin of the witnesses and the deceased was the father
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of the complainant and witnesses. It is the cardinal principle in law of

evidence that the best available evidence should be brought before the
court. Unfortunately, this is a case wherein other evidence besides eye
witnesses was available to support the prosecution case was not brought
on record by the prosecuting agency nor any attempt was made to show
to the court that how the witnesses have failed to support the
prosecution case. Evidence of recovery of weapon through panchnama,
may not be a discovery, still is a good evidence if proved beyond doubt.
Finding bloodstains of group of the deceased on the clothes of the
accused as well is a good evidence to support the prosecution besides the
direct evidence of eye witnesses. When accused himself files an
application that in same case the accused has got injuries and the
prosecution as well as court becomes, perhaps, oblivious to bring on
record such relevant facts, supporting the search of truth, itself is an
example of lack of awareness towards pious duties. Undoubtedly,
therefore, the role attributed to learned APP in this trial has been
eschewed in hurry of disposal of the trial, which has resulted in failure of
justice.
10. It is known and cardinal principle of evidence that even if a major

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14. Recently in the case of HIMANSHU SINGH SABHARWAL vs. STATE OF

M.P. & ORS., reported in : 2008 AIR SCW 2206, in para 16 and 17, the
Hon'ble Supreme Court has observed as under:
"16. The Courts have to take a participatory role in a trial. They are not
expected to be tape recorders to record whatever is being stated by the
witnesses. Sec. 311 of the Code and Sec. 165 of the Evidence Act confer
vast and wide powers on Presiding Officers of Court to elicit all necessary
materials by playing an active role in the evidence collecting process. They
have to monitor the proceedings in aid of justice in a manner that
something, which is not relevant, is not unnecessarily brought into record.
Even if the prosecutor is remiss in some ways, it can control the
proceedings effectively so that ultimate objective i.e. truth is arrived at.
This becomes more necessary where the Court has reasons to believe that

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the prosecuting agency or the prosecutor is not acting in the requisite

manner. The Court cannot afford to be wishfully or pretend to be blissfully
ignorant or oblivious to such serious pitfalls or dereliction of duty on the
part of the prosecuting agency. The prosecutor who does not act fairly
and acts more like a counsel for the defence is a liability to the fair judicial
system, and Courts could not also play into the hands of such prosecuting
agency showing indifference or adopting an attitude of total aloofness.
17. The power of the Court under Sec. 165 of the Evidence Act is in a way
complementary to its power under Sec. 311 of the Code. The Sec. consists
of two parts i.e. (i) giving a discretion to the Court to examine the witness
at any stage and (ii) the mandatory portion which compels the Court to
examine a witness if his evidence appears to be essential to the just
decision of the Court. Though the discretion given to the Court is very
wide, the very width requires a corresponding caution. In Mohan Lal v/s.
Union of India ( : 1991 Supp (1) SCC 271) this Court has observed, while
considering the scope and ambit of Sec. 311, that the very usage of the
word such as, 'any Court' 'at any stage', or 'any enquiry or trial or other
proceedings' 'any person' and 'any such person' clearly spells out that the
Sec. has expressed in the widest possible terms and do not limit the
discretion of the Court in any way. However, as noted above, the very
width requires a corresponding caution that the discretionary powers
should be invoked as the exigencies of justice require and exercised
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judicially with circumspection and consistently with the provisions of the

Code. The second part of the Sec. does not allow any discretion but
obligates and binds the Court to take necessary steps if the fresh evidence
to be obtained is essential to the just decision of the case - 'essential', to
an active and alert mind and not to one which is bent to abandon or
abdicate. Object of the Sec. 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. The power is exercised and the evidence is examined neither
to help the prosecution nor the defence, if the Court feels that there is
necessity to act in terms of Sec. 311 but only to subserve the cause of
justice and public interest. It is done with an object of getting the evidence
in aid of a just decision and to uphold the truth."
It is further observed by the Hon'ble Supreme Court in the said decision

that if the Criminal Court is to be an effective instrument in dispensing
justice, the Presiding Judge must cease to be a spectator and a mere
recording machine by becoming a participant in the trial evincing
intelligence, active interest and elicit all relevant materials necessary for
reaching the correct conclusions, to find out the truth, and administer
justice with fairness and impartiality both to the parties and to the
community it serves."

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7.7 One another glaring fact which is missed by the learned Presiding
Judge is the injuries found on the face of the deceased such as abrasions
etc. which, as per the deposition of doctor, were ante mortem. The
doctor has categorically stated in his deposition that the said
injuries/abrasions were ante mortem and were fresh and just prior to the
time she committed the suicide. Thus, it appears that in the morning she
was subjected to ill-treatment and harassment and thereafter she
committed the suicide by hanging on fan. Thus, if the learned Presiding
Judge instead of disposal of the trial in hurry and haste would have
appreciated other evidences on record, in its true perspective, in that
case the result would have been different. Thus, it appears that the
finding recorded by the learned trial Court while acquitting the original
accused that the prosecution has failed to prove the case against the
accused are ignoring the material evidence on record which has resulted
into miscarriage of justice and therefore, interference of this Court is
called for.
In the Case of STATE OF GUJARAT VERSUS RAMANBHAI PUNJABHAI

HARIJAN, GCD 2015 (3) 1842, the Hon’ble High Court has held that -
“ 25. While parting with this judgment, we express our great

dissatisfaction to the manner in which the investigation was conducted
by the Investigating Officer and prosecution conducted by learned A.P.P.

Page 37 of 54
Mr. H.K. Choksi. This Court also expresses its discontentment for the
learned Trial Judge, who had not taken serious care during the course
of recording evidence and not made use of provisions under Sec. 165 of
the Indian Evidence Act as well as Sec. 311 of the Code which read as
under:
"Section 165 of Evidence Act - -Judges power to put questions or order

production - -The judge may, in order to discover or to obtain proper proof
of relevant facts, ask any question he places, in any form, at any time, of
any witness, or of the parties, about any fact relevant or irrelevant; and
may order the production of any document or thing; and neither the
parties nor their agents shall be entitled to make any objection to any such
question or order, nor, without the leave of the Court, to cross -examine
any witness upon any answer given in reply to any such question:
Provided that the Judgment must be based upon facts declared by this Act
to be relevant, and duly proved:
Provided also that this Sec. shall not authorize any Judge to compel any
witness to answer any question, or to produce any document which such
witness would be entitled to refuse to answer or produce under Ss. 121 to
131, both inclusive, if the questions were asked or the documents were
called for by the adverse party; nor shall the Judge ask any question which
it would be improper for any other person to ask under Ss. 148 or 149; nor

Page 38 of 54
shall he dispense with primary evidence of any document, except in the

cases hereinbefore excepted."
Section 311 of Code of Criminal Procedure
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."
26. Under these provisions, the learned Trial Court has ample powers
and discretion to interfere with and control conduction of trial properly,
effectively and in the manner prescribed by law. While conducting trial,
the Court is not required to sit silent spectator but to take active part
well within boundaries of law Way back in the 1981, Hon'ble Apex Court
in the case of RAM CHANDER VERSUS STATE OF HARYANA : 1981 (SLT
Soft) 510 : AIR 1981 SC 1036 in para 2 observed as follows:
"2. The adversary system of trial being what it is, there is an unfortunate
tendency for a Judge presiding over a trial to assume the role of a referee
or an umpire and to allow the trial to develop into a contest between the

Page 39 of 54
prosecution and the defence with the inevitable distortions flowing from
combative and competitive elements entering the trial procedure. If a
Criminal Court is to be an effective instrument in dispensing justice, the
Presiding Judge must cease to be a spectator and a mere recording
machine. He must become a participant in the trial by evincing intelligent
active interest by putting questions to witnesses in order to ascertain the
truth."
27. We could have directed to forward the copy of the judgment to the
concerned authority for taking appropriate action but, we have been
informed that neither learned Presiding Judge-Mr. Himmatsinh Mahida
nor learned A.P.P. Mr. H.K. Choksi nor the Investigating Officer are in
service and, therefore, we left this issue here only. For the for going
discussion, it is not possible to sign the judgment of conviction by
reversing the order of acquittal passed by the learned Trial Judge and,
therefore, we dismiss the appeal preferred by the State for the reasons
recorded here in above and not for the reasons recorded by the learned
Trial Judge.
In the case of STATE OF GUJARAT VERSUS SHOBHNABEN DHANJIBHAI

KANTHARIA, GLR 2013 (4) 3004, the Hon’ble High Court has held that –
Considering the aforesaid facts and circumstances of the case, the learned
Judge ought to have and ought to have even exercised powers under

Page 40 of 54
section 311 of the Code of Criminal Procedure. Under section 311 of the
Code of Criminal Procedure, Court has been empowered to summon any
person as a witness at any stage of inquiry, trial or other proceedings, if
his evidence appears to be essential to the just decision of the case.
Identical question came to be considered by the Hon’ble Supreme Court
in the case of Mohanlal Shamji Soni Vs. Union of India and Another,
reported in 1991 (1) Crimes 818. In the said case, the Hon’ble Supreme
Court was considering the power of the Court under section 311 of the
Code of Criminal Procedure. In the said decision the Hon’ble Supreme
Court has specifically observed and held that Criminal Court has ample
power to summon any person as a witness or recall and re-examine any
such person even if evidence of both the 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 only safe guides
and that only the requirements of justice commands examination of any
person which would depend on the facts and circumstances of each
case. The Hon’ble Supreme Court in the said decision in para 6 has
observed and held as under :- “6. It is cardinal rule in the law of evidence
that the best available evidence should be brought before the Court to
prove a fact or the point in issue. But it is left either for the prosecution or
for the defence to establish its respective case by adducing the best
available evidence and the Court is not empowered under the provisions

Page 41 of 54
of the Code to compel either the prosecution or the defence to examine

any particular witness or witnesses on their sides. Nonetheless if either of
the parties withholds any evidence which could be produced and which, if
produced, be unfavourable to the party withholding such evidence, the
court can draw a presumption under illustration (g) to Section 114 of the
Evidence Act. In such a situation a question that arises for consideration
is whether the presiding officer of a Court should simply sit as a mere
umpire at a contest between two parties and declare at the end of the
combat who has won and who has lost or is there not any legal duty of
his own, independent of the parties to take an active role in the
proceedings in finding the truth and administering justice? It is a well
accepted and settled principle that a Court must discharge its statutory
functions whether discretionary or obligatory according to law in
dispensing justice because it is the duty of a Court not only to do justice
but also to ensure that justice is being done. In order to enable the Court
to find out the truth and render a just decision, the salutary provisions
of Section 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 as
a witness or recall or e-examine any person already examined who are
expected to be able to throw light upon the matter in dispute; because

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if judgements happen to be rendered on inchoate, inconclusive and

speculative presentation of the facts, the ends of justice would be
defeated.” 5.05. In the facts and circumstances narrated hereinabove, we
are of the opinion that the learned Judge has failed to discharge his duty
by not exercising powers under section 311 of the Code of Criminal
Procedure. We are of the opinion and firm view that in exercise of powers
under section 311 of the Code of Criminal Procedure, in the facts and
circumstances of the case, the learned Judge ought to have summoned
PSI Mr.B.M. Rathva who recorded the complaint given by the victim in the
Civil Hospital which has been registered as FIR which can be said to be first
dying declaration and the Doctor, who made endorsement on the Yadi
(Ex.35) made at 1.35 AM that the patient is conscious and even the Doctor
who treated the victim till she survived, along with the medical papers. If
that would have been done, it would have come on record and proved and
established that at the time when the victim gave the complaint, which
was recorded by PSI she was conscious and even at the time when the
Executive Magistrate recoded the dying declaration at 2.35 AM on
9/6/2009 she was conscious and was in a free state of mind to give dying
declaration. By not exercising powers under section 311 of the Code of
Criminal Procedure, the learned Judge has failed to discharge its duties to
reach to the truth and punish the guilty.

Page 43 of 54
In the case of STATE OF GUJARAT VERSUS PATEL ASHWINKUMAR

RANCHODBHAI, GLR 2008 2 1748, the Hon’ble High Court has held that
“6. CRIMES in society are real and concrete incident actually occurs.
Crimes are not fancy or imagination, which courts are called upon to
decide. Therefore, greater responsibilities are to be shouldered by courts
while dispensation of justice. Prosecuting agency and investigation
agency are also important factor in criminal justice system. Each
component must do justice to its role in doing justice to aggrieved
persons. The crimes are not affecting the individual, but influences the
society as a whole and, therefore, the grave crimes are not against
individual but against the society. The law regulates social interests,
arbitrates conflicting claims and demands. Security of persons and
property of the people is an essential function of the State. This could be
achieved through instrumentality of criminal law. The contagion of
lawlessness would undermine the social order and lay it in ruins.
Protection of society and stamping out criminal proclivity must be the
object of law, which must be achieved through courts of law through the
role assigned to a court. Law as a cornerstone of the edifice of order,
should meet the challenges confronting the society.
7. WE are at pain to observe that neither the learned Trial Judge nor the
learned APP endeavoured to find out the truth by probing further the
case. Instead, as soon as the witnesses, who were eye witnesses, turned
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hostile, the Trial Court as well as the learned APP shut the doors
towards their pious and prime duty to search for the truth and the trial
was closed in extreme hurry. We find that the Investigating Officer, who
is named in the charge sheet, could not be examined by the learned APP
nor such vigilance could be shown by the Trial Court to reach at the
truth. It is not the law that when eye witness turns hostile, the courts
should abandon the search for the truth and learned APP should
become oblivious to put forward the whole prosecution case and
instead of adducing further evidence for search of truth, simply giving
purshis in the case to lock the whole case in a cup board so as to ignore
completely the heinous crime like murder committed under the nose of
the society............Learned Trial Judge and prosecuting agency,
however, did not bring this evidence on record and adopted “shutters
down” approach. It is nowhere so defined in any criminal law of the
country that evidence means the evidence of eye witnesses only.
Evidence may be in any shape, and in search for the truth, this evidence
must be appreciated by the courts of law as evidence in criminal trial to
come to the truth. In this case, the learned Trial Judge as well as learned
APP both shut their eyes to their duties to explore the truth. The worst
thing which we find is that the Forensic Science Laboratory report which
is produced by the prosecution requires to be exhibited without formal
proof under Sections 293 or 294 of the Criminal Procedure Code, is

Page 45 of 54
neither exhibited by the Trial Court nor any endeavour was made by the
learned APP. Besides, we find from the record that accused himself
through his Advocate preferred an Application at Exhibit-7 on 30th of
October, 2004, wherein the accused prayed before the Court that in the
said case, accused also got injuries and the papers relating to the injuries
of the accused be called for and be placed on record as the documents
were important for the defence of the accused. The learned Trial Judge
passed an order dated 30th of October, 2004 that the application was kept
for hearing. However, it appears that, no further orders came to be
passed below such application. Perhaps, a judicial adjudication after due
consideration, could have assisted the Trial Court to arrive at the truth of
the matter, which is the sole purpose of the criminal trial.
8. TRUE that criminal justice deals with complex human problems and
diverse human beings. On account of relations, witnesses may turn
hostile and witnesses may resile when search for the truth is vigorously
undertaken through instrumentality of criminal law. In trials, therefore,
it becomes the duty of the Judge presiding over a criminal trial, to
courts exist for doing justice to the persons who are affected. As afore-
stated, the crimes of such nature like murder are affecting the society.
The court is not merely to act as a tape recorder recording the evidence,
Page 46 of 54
overlooking the object of trial i. e. to get at the truth. The courts cannot
be oblivious to the active role to be played, for which there is not only
ample scope but sufficient powers are conferred under the Code. The
court has a greater duty and responsibility to render justice in a case
where it appears that the role of the prosecuting agency itself is
dubious. The courts are expected to perform its duties and functions
effectively and true to the spirit with which the courts are sacredly
entrusted the dignity and authority and an alert judge actively
participating in court proceedings with a firm grip on oars enables the
trial smoothly to reach at the truth. The interest of the parties in
conducting the trial in such a way so as to gain success is
understandable, but the obligation of the Presiding Judge to hold the
proceedings as to achieve the dual objectives i. e. search for truth and
delivering pure justice cannot be subdued. Wherever necessary, even
courts are empowered to curb perjury. This is a fact that most of the
witnesses coming in the courts despite taking oath, make false
statements to suit the interest of the parties. Effective and stern action
is required to be taken on such a stand, which may be taken upon the
witnesses. The mere existence of penal provisions to deal with perjury
would be a cruel joke with the society unless the courts stop to take
evasive recourse despite proof of the commission of the offence.

Page 47 of 54
10. IT is known and cardinal principle of evidence that even if a major

15. THUS, in the present case, we found that prime and pious duty of the
Trial Court to appreciate the evidence for the search of truth is
abandoned. However, in hurry of disposal of the case or by perfunctory
and disregarding attitude the evidence which is on record of Forensic
Science Laboratory and the important evidence of Investigating Officer
was hurriedly dispensed with, for no reasons at all on record. The fact
that the accused was also injured in the said incident is also ignored by
the Trial Court as well as by the learned APP In-charge. No endeavour was
made to bring on record that what was the reason for the witnesses to
turn hostile and not to support the prosecution case. It is much necessary
Page 48 of 54
that the pious duty of dispensation of criminal justice cannot be shifted

in the hands of unscrupulous witnesses, who according to their interest,
put the whole criminal justice system in doldrums. The net result of casual
dealing with the trial is failure of justice affecting the society at large. In
such circumstances, therefore, we have no other alternative except to
remand the trial to the Trial Court for re-trial with due adherence to the
cardinal principle of criminal justice system. We are fortified in our views
by the decision of the Apex Court in the matter of ZAHIRA HABIBULLA H.
SHEIKH AND ANR vs. STATE OF GUJARAT, as reported in (2004) 4 SCC 158,
for the principle that whenever it appears to the court that miscarriage
of justice has occasioned, it becomes the duty of the appellate court to
direct re-trial. We are unable to shut our eyes and close the doors of the
social order.”
In the Case of CHATURBHUJ PANDE VERSUS COLLECTOR,RAIGARH, AIR(SC)

1969 – 255, the Hon’ble Supreme Court has held that -
6. But that is of no assistance to the appellants. As mentioned earlier, the High

Court has refused to rely on the oral testimony adduced in support of the
appellants' claim as regards the value of the orchard. It is true that the
witnesses examined on behalf of the appellants have not been effectively
cross-examined. It is also true that the Collector had not adduced any
evidence in rebuttal; but that does not mean that the court is bound to accept

Page 49 of 54
their evidence. The Judges are not computers. In assessing the value to be
attached to oral evidence, they are bound to call into aid their experience of
life. As Judge of fact it was open to the appellate Judges to test the evidence
placed before them on the basis of probabilities.
Section – 311 of the Code of Criminal Procedure:
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.
Where a person was essentially a witness for the prosecution and the
prosecution should have cited him either in the charge – sheet or immediately
afterwards but failed to do so, the failure of the prosecution to call him as a
witness cannot be made up by the court exercising its power under this
section.
In order to enable the Court to find out the truth and render a just
decision the salutary provisions of section 311 are enacted where under any
court by exercising its discretionary authority at any stage of enquiry, trial or

Page 50 of 54
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 section is manifestly in two parts. Whereas the word ‘used’ in the
first part is ‘may’ the word used in the second part is ‘shall’. In consequence,
the first part which is permissive gives purely discretionary authority to the
Criminal Code and enables it ‘at any stage of enquiry, trial or other
proceedings’ under the Code to act in one of the three ways, namely.
The first part court may –
1. to summon any person as a witness, or

2. to examine any person in attendance, though not summoned as a
witness, or,
3. to recall and re – examine any person already examined.
The second part court shall –
1. to summon and examine, or

Page 51 of 54
2. to recall and re – examine any such person if his evidence appears to be

essential to the just decision of the case.
In the Case of STATE OF GUJARAT Versus Ramanbhai Punjabhai

Harijan, GCD 2015 3 1842, STATE OF GUJARAT Versus Shobhnaben Dhanjibhai
Kantharia, GLR 2013 4 3004, The Hon’ble High Court of Gujarat has deeply
discussed about the said section.
In the case of SHAILENDRA KUMAR VERSUS STATE OF BIHAR, AIR(SC) 2002

(0) 270, the Hon’ble Supreme Court has held that –
9. In our view in a murder trial it is sordid and repulsive matter that without
informing the police station officer-in-charge, the matters are proceeded by
the Court and by the APP and tried to be disposed of as if the prosecution has
not led any evidence. From the facts stated above, it appears that accused
wants to frustrate the prosecution by unjustified means and if appears that
by one way of the other the Addl. Sessions Judge as well as the APP have not
taken any interest in discharge of their duties. It was the duty of the Sessions
Judge to issue summons to the investigating officer if he failed to remain
present at the time of trial of the case. The presence of investigating officer
at the time of trial is must. It is his duty to keep the witnesses present. If
there is failure on part of any witness to remain present, it is the duty of the
Court to take appropriate action including issuance of bailable/non-bailable
warrants as the case may be. It should be well understood that prosecution

Page 52 of 54
cannot be frustrated by such methods and victims of the crime cannot be left
in lurch.
11. Bare reading of the aforesaid section reveals that it is of very wide
amplitude and if there is any negligence, latches or mistakes by not
examining material witnesses, the Courts function to render just decision by
examining such witnesses at any stage is not, in any way, impaired. This
Court in Rajendra Prasad vs. Narcotic Cell (1999) 6 SCC 110 observed. "After
all, function of the criminal Court is administration of criminal justice and not
to count errors committed by the parties or to find out and declare who
among the parties performed better".
In the case of RAJENDRA PRASAD VERSUS NARCOTIC CELL THROUGH ITS

OFFICER IN CHARGE, DELHI, AIR(SC) 1999 – 2292, the Hon’ble Supreme Court
has held that –
6. It is a common experience in criminal Courts that defence counsel would

raise objections whenever Courts exercise powers under Section 311 of the
Code or under Section 165 of the Evidence Act by saying that the Court could
not 'fill the lacuna in the prosecution case.' A lacuna in prosecution is not to
be equated with the fallout of an oversight committed by a public
prosecutor during trial, either in producing relevant materials or in eliciting
relevant answers from witnesses. The adage 'to err is human' is the
recognition of the possibility of making mistakes to which humans are

Page 53 of 54
proned. A corollary of any such laches or mistakes during the conducting of

a case cannot be understood as the lacuna which a Court cannot fill up.
7. Lacuna in the prosecution must be understood as the inherent weakness

or a latent wedge in the matrix of the prosecution case. The advantage of it
should normally go to the accused in the trial of the case, but an over sight in
the management of the prosecution cannot be treated as irreparable lacuna.
No party in a trial can be foreclosed from correcting, errors. 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. After all, function of the criminal Court is administration of
criminal justice and not to count errors committed by the parties or to find
out and declare who among the parties performed better.
8. The very same decision, Mohanlal Shamji Soni v. Union of India, (supra),
which cautioned against filling up lacuna has also laid down the ratio thus
(Para 27):
"It is therefore clear that the 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 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 the requirements of

Page 54 of 54
justice command the examination of any person which would depend on the
facts and circumstances of each case.'
11. We cannot therefore accept the contention of the appellant as a legal

proposition that the Court cannot exercise power of re-summoning any
witness if once that power was exercised, nor can the power be whittled
down merely on the ground that prosecution discovered laches only when
the defence highlighted them during final arguments. The power of the Court
is plenary to summon or even recall any witness at any stage of the case if the
Court considers it necessary for a just decision. The steps which the trial Court
permitted in this case for re-summoning certain witnesses cannot therefore
be spurned down nor frowned at.
-:: THANKING YOU ::-

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Page 1 of 54

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

It is cardinal rule in the law of evidence that the best

section – 165 of Evidence Act is intended to arm the Judge

SIR JAMES STEPHEN, while presenting the report of the Select

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

necessary for him to go into matters which are not

The section – 165 of Evidence Act is as under :

Section – 165 : Judge's power to put questions or order production :

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

witness would be entitled to refuse to answer or produce under Section 121

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

2. to produce any document which such witness would be entitled to

The Landmark Judgment of Hon’ble Supreme Court in the case of ZAHIRA

“ 15. IN 1846, in a judgment which Lord Chancellor Selborne would later

"The discovery and vindication and establishment of truth are main

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

The Vice-Chancellor went on to refer to paying "too great a price.... for

"The evidence has been obtained at a price which is unacceptable having

Restraints on the processes for determining the truth are multi-faceted.

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

As will presently appear, the principle of a fair trial manifests itself in

"It is desirable that the requirement of fairness be separately identified

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

relation to proceedings, even if a fair trial is still possible, except at the

Failure to accord fair hearing either to the accused or the prosecution

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

20. LEGISLATIVE measures to emphasise prohibition against tampering

the requisite manner. The Court cannot afford to be wishfully or pretend

require and exercised judicially with circumspection and consistently

22. ULTIMATELY, as noted above, ad nauseam the duty of the Court is

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

In the Case of SIDHARTHA VASHISHT ALIAS MANU SHARMA VERSUS STATE

It is thus important for us to address the role of a prosecutor, disclosure

A public prosecutor is appointed under Section 24 of the Code of Criminal

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

Sessions Court. A Public Prosecutor is not expected to show a thirst to

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

investigating agency. He is an independent statutory authority. The

Therefore, a public prosecutor has wider set of duties than to merely

35. IT is also important to note the active role which is to be played by

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

At the outset it is required to be noted that from the impugned judgment

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

particularly when the P.W. -1 - original complainant who gave the

Ors. (Supra). In a similar set of facts and circumstances dealing with a

besides whatever evidence was adduced by the prosecution, it did not

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

gain success is understandable, but the obligation of the Presiding Judge

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

evidence. It is the cardinal principle of law of evidence that the best

51. It is known and cardinal principle of evidence that even if a major

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

or concerned Trial judge afford to be so perfunctory in dealing with the

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

of Criminal Procedure and examined those witnesses who were already

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

7.3 In the case of Ashwinkumar Ranchhodbhai Patel (Supra), the Division

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

accused, contained bloodstains, and according to Forensic Science

Prepared by : H. D. Patel, 3rd Additional Senior Civil Judge, Kheda @ Nadiad.

of the complainant and witnesses. It is the cardinal principle in law of