NATASHA SINGH versus CBI (STATE)

[2013) 5 S.C.R. 539

NATASHA SINGH

CBI (STATE)

(Criminal Appeal No. 709 of 2013)

MAY 8, 2013

[DR. B.S. CHAUHAN AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.]

code of Criminal Procedure, 1973 -s.311 -Proceedings initiated under the /PC and Prevention of Corruption Act -Three accused including appellant -Appellant, in her defence examined one witness, DW-2 and after proving certain documents closed her defence - Trial Court fixed date for hearing final arguments - Prior to date of final hearing, application filed by appellant u/s.311 CrPC for permission to examine three witnesses -Application dismissed by trial court on ground that examination of the witnesses sought to be examined by the appellant was unnecessary - High Court affirmed the order of trial court -Propriety - Held: Not proper - Application filed uls. 311 Cr.P. C. must be allowed if fresh evidence is being produced to facilitate just decision -The trial court prejudged the evidence of the witnesses sought to be examined by the appellant, and thereby caused grave and material prejudice to the appellant as regards her defence, which tantamounts to flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of s. 311 Cr. P. -Trial Court reached the conclusion that production of such evidence by the defence was not essential to facilitate just decision of the case - Such an assumption was wholly misconceived, and not tenable in law as appellant has every right to adduce evidence in rebuttal of the evidence -brought on record by the prosecution Furthermore, instant case not one where if application filed by the appellant had

[2013] 5 S.C.R.

been allowed, the process would have taken much time - In -fact, disallowing the said application, has caused delay No prejudice would have been caused to the prosecution, if the defence had been permitted to examine said three witnesses - Application u/s.311 Cr.P. C. filed by appellant accordingly allowed - Prevention of Corruption Act, 1988 - s. 13(2) rlw s.13(1)(d) - /PC - s.1208 rlw ss.420, 467, 468, 471.

--Code of Criminal Procedure, 1973 s.311 Powers under- Scope and object-Held: Poweruls.311 Cr.P.C. must be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be -exercised with great caution and circumspection Determinative factor should be, whether summoning/recalling of the said witness is in fact, essential to the just decision of the case - Adducing evidence in support of the defence is valuable right - Denial of such right would amount to the denial of fair trial - Under no circumstances can person's --right to fair trial be jeopardized Criminal trial Fair trial.

In case pertaining to allegations of inflated

insurance claim involving company and public servant, FIR was registered under Section 1208 read with Sections 420, 467, 468, 471 of the IPC and Section 13(2) . read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the appellant-Director of the company, another Director and the public servant concerned. Charges were framed by the Trial Court agaim~t all the three accused. In support of its case, the prosecution examined 52 witnesses .subsequent whereto, the statement of the appellant-accused was recorded. The appellant, in her defence examined only one witness, namely, DW-2 and after proving certain documents closed her defence. Subsequently, one other accused, A-3 concluded his defence after examining two defence witnesses. The Trial Court thereafter, fixed the date for hearing final arguments as 5.3.2013. The appellant

preferred application under Section 311 Cr.P .C. on

5.3.2013 for permission to examine three witnesses. The appellant wished to examine one of the panchnama witnesses, whom the prosecution had neither listed nor examined in court. The second person was Company Secretary of the company, of which the appellant was the Director. The third witness was hand-writing expert. The Trial court dismissed the application, observing that examination of the witnesses sought to be examined by the appellant-accused was in fact unnecessary, and would in no way assist in the process of arriving at just decision with respect to the case. The High Court affirmed the order passed by the Trial Court, and therefore the instant appeal.

Allowing the appeal, the Court

HELD:1.1. Section 311 Cr.P .C. empowers the court to summon material witness, or to examine person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under the Cr.P.C., or to summon any person as witness, or to recall and re-examine any person who has already been examined if his evidence "4ppears to it, to be essential to the arrival of just decision of the case. The Cr.P .C. has conferred very wide discretionary power upon the court in this respect, but such discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to exam.ine such witness, or to recall him for further examination in order to arrive at just decision of the case. [Para 7] [548-E-H; 549-A]

[2013) 5 S.C.R.

1.2. The scope and object of the provision is to enable the Court to determine the truth and to render just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up lacuna in the case of the ptosecution, or of the defence, or to the disadvantage <>f the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as disguise for retrial, or to change the nature of the case against 0 [either ][of ][the parties. Such ][power ][must ][be exercised, ]provided that the evidence that is likely to be tendered by witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as 'any Court', 'at any stage", or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have t,een expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case. [Para 14] [552-E-H; 553-A-D]

1.3. Fair trial is the main object of criminal procedure,

and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is constitutional, as well as human right. Thus, under no circumstances can person's right to fair trial be jeopardized. Adducing evidence in support of the defence is valuable right. Denial of such right would amount to the denial of fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. [Para 15) (553-0-G]

Mir Mohd. Omar & Ors. v. State of West Bengal AIR 1989 SC 1785: 1989 (3) SCR 735; Mohan/al Shamji Soni v. Union of India & Anr. AIR 1991 SC 1346: 1991 (1) SCR 712; Rajeswar Prasad Misra v. The State of West Bengal & Anr. AIR 1965 SC 1887: 1966 SCR 178; Rajendra Prasad v. Narcotic Cell through its Officer-in-Charge, Delhi AIR 1999 SC 2292 1999 (3) SCR 818; P. Sanjeeva Rao v. State of A.P. AIR 2012 SC 2242: 2012 (6) SCR 787; T. Nagappa v. Y.R. Muralidhar AIR 2008 SC 2010: 2008 (6) SCR 959; Ta/ab Haji Hussain v. Madhukar Purshottam Mondkar & Anr. AIR 1958 SC 376: 1958 SCR 1226; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 3114: 2004 (3) SCR 1050; Zahira Habibul/ah Sheikh & Anr. v. State of Gujarat & Ors. AIR 2006 SC 1367: 2006 (2) SCR 1081; Kalyani Baskar (Mrs.) v. M. S. Sampoomam (Mrs.), (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr. (2011) 8 SCC 136: 2011 (11} SCR 893 and Sudevanand v. State through C.B.I. (2012) 3 sec 387: 2012 (2) SCR 139 - relied on.

2.1. An application filed under Section 311 Cr.P.C.

must be allowed if fresh evidence is being produced to facilitate just decision, however, in the instant case, the Trial Court prejudged the evidence of the witness sought

to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 31.1 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of PW.40, and request 0 made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be conclusive. In such situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. The said panchnama witness, thus, may be in position to depose with respect to whether the documents alleged to have been found, or to have been seized; were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating just decision of the case. [Para 18] [555-D-H; 556-A-C]

2.2. The High Court simply quoted relevant

paragraphs from the judgment of the Trial Court and approved the same without giving proper reasons, merely observing that the additional evidence sought to

be brought on record was not essential for the purpose of arriving at just decision. Furthermore, the same is not case where if the application filed by the appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine said three witnesses. [Para 19] [556-D-E]

2.3. The application under Section 311 Cr.P.C. filed by the appellant is allowed. The parties are directed to appear before the Trial Court, and the Trial Court is requested to fix date on which the appellant shall produce the three witnesses, and the same may thereafter be examined expeditiously 1n accordance with law, and without causing any further delay. The prosecution will be entitled to cross examine them. [Para 20] [556-F-H]

Case Law Reference:

1989 (3) SCR 735 1991 (1) SCR 712 1966 SCR 178 1999 (3) SCR 818 2012 (6) SCR 787 2008 (6) SCR 959 1958 SCR 1226 2004 (3) SCR 1050 2006 (2) SCR 1081 (2001) 2 sec 258 2011 (11) SCR 893

relied on Para 8 relied on Para 9 relied on Para 10 relied on Para 11 relied on Para 12 relied on Para 13 relied on Para 15 relied on Para 15 relied on Para 15 relied on Para 15 relied on Para 15

2012 (2) SCR 139 relied on Para 13

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 709 of 2013.

From the Judgemnt & Order dated 8.04.2013 of the High Court of Delhi at New Delhi in Crl. M.C. No. 1324 of 2013. Uday Lalit, Hari Shankar K., Kawai Nain, Aditya Verma for the Appellant.

S.P. Singh. Syed Tanweer Ahmad, Dinesh Kothari, B.V. Balaram Das for the Respondent.

The Judgment of the Court was delivered by

DR. B.S. CHAUHAN, J. 1. Leave granted.

2. This appeal has been preferred against the impugned

judgment and order dated 8.4.2013 in Criminal Misc. Case No.1324 of 2013, passed by the High Court of Delhi at New Delhi, by way of which it has affirmed the order dated 16.3.2013, passed by the Trial Court, dismissing the application filed by the appellant under Section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P .C.'), observing that examination of the witnesses sought to be examined by the appellant-accused was in fact unnecessary, and would in no way assist in the process of arriving at just decision with respect to the case.

3. Facts and circumstances giving rise to this appeal are as under:

A. An FIR dated 10.8.1998 was registered under Section

1206 read with Sections 420, 467, 468, 471 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') and Section 13(2) read with Section 13(1 )(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act 1988') against the appellant and other accused persons. After the conclusion of

the investigation, chargesheet was filed on 19.7.2001 by the investigating agency, i.e., CBI against Smt. Rita Singh (A-1), Mrs. Natasha Singh (A-2), appellant, and Mr. Y.V. Luthra (A-3), Public Servant.

B. In view thereof, charges were framed by the learned Trial Court on 5.5.2003 against all the three accused.

C. In support of its case, the prosecution examined 52

witnesses in the course of over 50 hearings and subsequent thereto, the statement of the appellant-accused was recorded on 28-29.1.2013 and 5.2.2013. The appellant, in her defence examined only one witness, namely, Sudhir Kumar (DW-2) and after proving cer.tain documents closed her defence on 18.2.2013. The other accused, namely, Mr. Y.V. Luthra concluded his defence on 19.2.2013, after examining two defence witnesses, namely, Mr. A.K. Saxena and Mr. Satpal Arora. The Trial Court thereafter, fixed the date for hearing final arguments as 5.3.2013. The appellant preferred an application under Section 311 Cr.P.C. on 5.3.2013 for permission to examine three witnesses. The said application was dismissed by the Trial Court vide order dated 16.3.2013, against which the Criminal Misc. petition filed by the appellant was also dismissed by the High Court, by way of impugned order dated 8.4.2013.

Hence, this appeal. ·

4. Shri U.U. Lalit, learned senior counsel appea~ing for the

appellant, has submitted that the FIR was lodged in 1998 and if the prosecution has taken more than decade to examine 52 witnesses, and that if after the appellant had closed her defence, the other accused had laid evidence in his defence, and that thereafter, without losing any time, the appellant had -preferred an application seeking permission to examine three witnesses in her defence, and had even given reasons for their examination, the same should not have been dismissed. The· Trial Court has committed an error in appreciating the evidence

[2013] 5 S.C.R.

which could have been provided by the said three witnesses in anticipation. It has also been stated that further, there was no delay on the part of the appellant in moving the application. Had this application been allowed by the courts below, no prejudice would have been caused to the respondent. Thus, the

appeal deserves to be allowed.

5. On the contrary, Shri S.P. Singh, learned senior counsel

appearing for the respondent, has opposed the appeal contending that the courts below have recorded finding of fact to the extent that the said evidence was not necessary to arrive just decision, and that it was left to the discretion of the court whether to allow such an application or not. This Court should not interfere with the manner in which such discretion has been exercised by the courts below. The courts below have considered the case in correct perspective and thus, no interference is called for. The appeal lacks merit and is liable to be dismissed.

6. We have considered the rival submissions made by

learned counsel for the parties and perused the record.

7. Section 311 Cr.P.C. empowers the court to summon

material witness, or to examine person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under the Cr.P .C., or to su'mmon any person as witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of just decision of the case. Undoubtedly, the Cr.P.C. has conferred very wide discretionary power upon the court in this respect, but such discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine

such witness, or to recall him for further examination in order to arrive at just decision of the case.

8. In Mir Mohd. Omar & Ors. v. State of West Bengal, AIR

1989 SC 1785, this Court examined an issue wherein, after the statement of the accused under Section 313 Cr.P.C. had been recorded, the prosecution had filed an application to further examine witness and the High Court had allowed the same. This Court then held, that once the accused has been examined under Section 313 Cr.P.C., in the event that liberty is given to the prosecution to recall witness, the same may amount to filling up lacuna existing in the case of the prosecution and therefore, that such an order was uncalled for.

9. In Mohan/al Shamji Soni v. Union of India & Anr., AIR

1991 SC 1346, this Court examined the scope of Section 311 Cr.P.C., and held that it is cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove fact, or point in issue. However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. The court has duty to determine the truth, and to render just decision. The same is also the object of Section 311 Cr.P.C., wherein the court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as witness though not yet summoned as witness, or to recall or re-examine any person, though not yet summoned as witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

10. In Rajeswar Prasad Misra v. The State of West Bengal

& Anr., AIR 1965 SC 1887, this Court dealt with the ample power and jurisdiction vested in the court, with respect to taking additional evidence, and observed, that it may not be possible for the legislature to foresee all situations and possibilities and

therefore, the court must examine the facts and circumstances of each case before it, and if it comes 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 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 Court further held as under:-

• ..... the Criminal Court has ample power to summon any person as 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 justice command the examination of any person which would depend on the facts and circumstances of each case." (Emphasis added)

11. In Rajendra Prasad v. Narcotic Cell through its Officer-

in-Charge, Delhi, AIR 1999 SC 2292, this Court considered similar issue and held as under:-

"Lacuna in the prosecution must be understood as the inherent weakness or 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 trial can be foreclosed from correcting, errors. If proper evidence was not adduced or 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.• (Emphasis added)

12. Similarly, in P. Sanjeeva Rao v. State of A.P., AIR 2012 SC 2242, this Court examined the scope of the provisions of Section 311 Cr.P.C. and held as under:-

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

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

xxx xxx

We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old ..... we are of the opinion that on parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against possible prejudice at his cost. Fairness of the trial is virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. possible prejudice to prosecution is not even price, leave alone one that would justify denial of fair opportunity to the accused to defend himself."

13. In T. Nagappa v. Y.R. Muralidhar, AIR 2008 SC 2010, this Court held, that while considering such an application, the

court must not imagine or assume what the deposition of the witness would be, in the event that an application under Section 311 Cr.P .C. is allowed and appreciate in its entirety, the said anticipated evidence. The Court held as under:

"What should be the nature of evidence is not matter which should be left only to the discretion of the court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefor, however, must be taken within limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant."

14. The scope and object of the provision is to enable the

Court to determine the truth and to render just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as disguise for retrial, or to change the nature of the case against either of the parties. Such· power must be exercised, provided that the evidence that is likely to be tendered by

NATASHA SINGH v. CBI (STATE)

[DR. S.S. CHAUHAN, J.]

witness, is germane to the issue involved. An opportunity of

rebuttal however, must be given to the other party.

The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.

The very use of words such as 'any Court', 'at any stage",

or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.

15. Fair trial is the main object of criminal procedure, and

it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is constitutional, as well as human right. Thus, under no circumstances can person's right to fair trial be jeopardized. Adducing evidence in support of the defence is valuable right. Denial of such right would amount to the denial of fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous. in ensuring that there is no breach of the same. (Vide: Ta/ab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors., AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367; Ka/yani Baskar (Mrs.) v. M. S. Sampoomam (Mrs.), (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136; and Sudevanand v. State through C.B.I., (2012) 3 SCC 387)

16. The instant case is required to be examined in light of the aforesaid settled legal propositions. The relevant part of the chargesheet dated 19.7.2001 states, that the insurance claim filed by the appellant was inflated and that therefore, the collusion of Public Servant in this respect attracted the 8 [provisions of Sections 420, 467, 468, ][471 ][and ][13 ][of the Act ]1988. The chargesheet further revealed that:

"Investigation has revealed that in order to obtain insurance claim, accused Rita Singh (A-1) in her capacity as Director, Mideast India Ltd. accused Natasha Singh (A-2) in her capacity as Director, approached IFCI and in view of the aforesaid necessity for obtaining NOC from Financial Institutions/Banks, Sh. S.S. Batra, Company Secretary, MIL vide letter dated 1.3.96 requested IFC/, New Delhi for issuing NOC for releasing sum of Rs.3. 75 crores as interim on account payment. Sh. 8.8. Hurla the then Chief General Manager, IFCI recorded note on this Jetter for issuing NOC subject to payment of over dues aggregating to Rs. 58 lacs. Despite the fact that there were over dues to the tune of Rs.58,92, 1971-against Mideast (India) Limited, accused Y. V.Luthra dishonestly and fraudulently issued NOC dated 1.3.96 for release of Rs.3. 75 crores by the insurance Company in respect of property at 8-12/A Phase.II, Naida and he on 2.3.96 recorded note in the office copy of the letter dated 1.3.96 that NOC was issued as there were no over dues as confirmed from Accounts Department. This NOC dated 1.3.96 was handed over to the representative of Mideast (India) Limited, which was presented to Delhi Regional Office of UllCL and on the strength of the said false NOC the Insurance Company's Head Office at Chennai released payment of Rs.3.60 crores to Mideast (India) Limited vide cheque No.454431 dated 8. 3. 96 which was credited to the account of Mideast (India) Limited. sum of Rs.15 lacs was retained out of the approved amount of Rs.3. 75 crores towards payment to PNB Capital Finance."

17. The Trial Court, while entertaining the application filed under Section 311 Cr.P.C., had asked the appellant to provide brief sum·mary of the nature of evidence that would be provided by the defence witnesses mentioned in the application, .. an_d in keeping with this, the appellant had furnished an application stating that the appellant wished to examine one Shri B.B. Sharma who was one of the panchnama witnesses, and who the prosecution had neither listed nor examined in court. Therefore, the appellant wished to examine him in defence. The second person was Shri S.S. Batra; Company Secretary of the appellant, as he was the best person to provide greater details of the company of which the appellant is the Director. The third witness was hand-writing expert, and it was necessary for the defence to examine him regarding the correctness of the signatures of the appellant and others, particularly with respect to the signatures of the appellant.

18. Undoubtedly, an application filed under Section 311

Cr.P.C. must be allowed if fresh evidence is being produced to facilitate just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be

(2013) 5 S.C.R.

conclusive. In such situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating just decision of the case.

19. The High Court has simply quoted relevant paragraphs

from the judgment of the Trial Court and has approved the same without giving proper reasons, merely observing that the additional evidence sought to be brought on record was not essential for the purpose of arriving at just decision.

Furthermore, the same is not case where if the application filed by the appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine said three witnesses.

20. In view of above, the appeal succeeds and is allowed. The judgment and order of the Trial Court, as well as of the High Court impugned before us, are set aside. The application under Section 311 Cr.P.C. filed by the appellant is allowed. The parties are directed to appear before the learned Trial Court on the 17th of May, 2013, and the learned Trial Court is requested to fix date on which the appellant shall produce the · three witnesses, and the same may thereafter be examined expeditiously in accordance with law, and without causing any further delay. Needless to say that the prosecution will be entitled to cross examine them.

Appeal allowed.