IDDAR AND ORS. versus AABIDA AND ANR.

Citation: [2007] 8 S.C.R. 518 · Decided: 25-07-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
IDDAR AND ORS. 
v. 
AABIDA AND ANR. 
JULY 25, 2007 
B 
[DR. ARIJIT PASAY AT AND D.K. JAIN, JJ.] 
Code of Criminal Procedure, I973: 
ss. 3I I and 482-Application uls 31 I for re-recording statement of 
C complainant-Rejection of by trial court-High Court setting aside order of 
trial court in exercise of power u/s 482-Without hearing other party-
Applications by other party recalling the orde:· of High Court and for their 
impleadment in the application uls 482-Denied by High Court-On appeal, 
held: Though High Court has no power to review/recall its order, but in view 
D of peculiar facts of the case, previous order of High Court set aside--
Direction to implead the other party. 
s. 3 I I-Nature, object and scope of-Held: The provision is 
supplementary· and discretionary-It is general provision which applies to 
all proceedings-The object thereof is to safeguard failure of justice on 
E account of mistake of either party in bringing valuable evidence on record 
or leaving ambiguity of statements of examined witnesses-The object is to 
bring on record evidence from the point of view of the accused, the prosecution 
and also the orderly society-Powers under it are very wide and hence the 
discretion is to be exercised judiciously. 
F 
The statement of a complainant before Trial Court was at variance with 
the statement recorded during investigation. Thereafter an application u/s 
311 Cr.P.C. requesting for recording the statement of the complainant afresh 
was filed. Trial Court rejected the application on the ground that it was a case 
where prosecution was trying to fill up lacunae of prosecution version. 
G Respondent No. 1 filed application u/s 482 Cr.P.C. for setting aside order of 
trial court. High Court by order dated 20.2.2006 allowed the application. 
Thereafter appellants herein filed an application to recall the order dated 
20.2.2006 as the same was decided without hearing them. They also filed an 
application to be impleaded. High Court rejected the application. Hence the 
H 
518 
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IDDAR v. AABIDA 
519 
present appeal 
A 
J 
""' 
Allowing the appeal, the Court 
HELD: l. Section 311 Cr.P.C. is a supplementary provision enabling,, 
and in certain circumstances imposing on the Court the duty of examining a, 
material witness who would not be otherwise brought before it. It is couched B 
in the widest possible terms and calls for no limitation, either with regard to 
the stage at which the powers of the Court should be exercised, or with regard 
-
to the manner in which it should be exercised. It is not only the prerogative 
;.. 
but also the plain duty of a Court to examine such of those witnesses as it 
considers absolutely necessary for doing justice between the State and the c 
subject. There is a duty cast upon the Court to arrive at the truth by all lawful 
means and one of such means is the examination of witnesses of its own accord' 
when for certain obvious reasons either party is not prepared to call witnesses 
who are known to be in a position to speak important relevant facts. 
[Para 10) (523-B-DJ 
D 
2. The object underlying Section 311 Cr.P.C. is that there may not be 
---( 
failure of justice on account of mistake of either party in bringing the valuable 
.., 
evidence on record or leaving ambiguity in the statements of the witnesses 
examined from either side. The determinative factor is whether it is essential 
to the just decision of the case. The section is not limited only for the benefit 
of the accused, and it will not be an improper exercise of the powers of the E 
Court to summon a witness under the Section merely because the evidence 
supports the case for the prosecution and not that of the accused. The section 
is a general section which applies to all proceedings, enquiries and trials 
under Cr.P.C. and empowers Magistrate to issue summons to any witness at 
any stage of such proceedings, trial or enquiry. In Section 311 the significant F 
-_,+ 
expression that occurs is "at any stage of inquiry or trial or other proceeding 
under this Code". lt is, however, to be borne in mind that whereas the section 
confers a very wide power on the Court on summoning witnesses, the 
discretion conferred is to be exercised judiciously, as the wider the power the 
greater is the necessity for application of judicial mind. [Para 11) (523-E-H) 
d 
_, 
3. The Section is manifestly in two parts. Whereas the word used in 
the first part is "may", the second part uses "shall". In consequen

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