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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.709 of 2013 (Arising out of SLP (Crl.) No.3271 of 2013)

Natasha Singh                             …Appellant

Versus

CBI (State)  …Respondents

J U D G M E N T

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

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examined  by  the  appellant-accused  was  in  fact  unnecessary,  and  

would in no way assist in the process of arriving at a 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  120B  

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, a  

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), a 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,  

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Sudhir Kumar (DW-2) and after proving certain 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  appearing  for  the  

appellant, has submitted that the FIR was lodged in 1998 and if the  

prosecution has taken more than a 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  

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dismissed.  The Trial Court has committed an error in appreciating the  

evidence 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 a finding of fact to the extent that the  

said evidence was not necessary to arrive a 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 a 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.

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

witness,  or  to  examine  a  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 a 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  a  just  decision  of  the  case.  

Undoubtedly,  the  Cr.P.C.  has  conferred  a  very  wide  discretionary  

power upon the court in this respect,  but such a 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 a 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 a  

witness, or to recall him for further examination in order to arrive at a  

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  

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recorded, the prosecution had filed an application to further examine a  

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 a  

witness, the same may amount to filling up a lacuna existing in the  

case of the prosecution and therefore, that such an order was uncalled  

for.  

9. In  Mohanlal  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 a cardinal rule of the law of evidence, that the best  

available evidence must be brought before the court to prove a fact, or  

a  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  

a duty to determine  the truth, and to render a 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 a witness though not yet  

summoned as a witness, or to recall or re-examine any person, though  

not  yet  summoned as  a  witness,  who are  expected to be  able  to  

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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 a failure of justice without such evidence  

being considered, and if such an action on its part is justified, then the  

court must exercise such power.  The Court further held as under:-

“…..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 justice command the examination of any   person  which  would  depend  on  the  facts  and   circumstances of each case.”                (Emphasis added)  

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

Charge, Delhi, AIR 1999 SC 2292, this Court considered a similar  

issue and held as under:-

“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.”   (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  a  liberal  view  in  the   

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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 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 a 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 a possible prejudice at his cost. Fairness of the   trial is a virtue that is sacrosanct in our judicial system   and  no  price  is  too  heavy  to  protect  that  virtue.  A   possible  prejudice  to  prosecution  is  not  even  a  price,   leave  alone  one  that  would  justify  denial  of  a  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 a matter   which should be left only to the discretion of the court. It   

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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 a 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  a  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 a just decision after discovering all  

relevant facts and obtaining proper proof of such facts, to arrive at a  

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 a 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 a disguise for  

retrial, or to change the nature of the case against either of the parties.  

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Such a power must be exercised, provided that the evidence that is  

likely to be tendered by a 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  

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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  a  constitutional,  as  well  as  a  

human right.  Thus, under no circumstances can a person’s right to  

fair  trial  be   jeopardized.   Adducing  evidence  in  support  of  the  

defence is a valuable right.  Denial of such right would amount to the  

denial of a 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:  Talab  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;  Kalyani  Baskar  (Mrs.)  v.  M.S.  Sampoornam  (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  

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the appellant was inflated and that therefore, the collusion of a Public  

Servant in this respect attracted the 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 IFCI, New Delhi for issuing a NOC for   releasing a sum of Rs.3.75 crores as interim on account   payment.  Sh.  B.B.  Huria  the  then  Chief  General   Manager, IFCI recorded a note on this letter 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.58,92,197/- 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  B-12/A   Phase II, Noida and he on 2.3.96 recorded a 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   UIICL and on the  strength  of  the said  false  NOC the   Insurance Company's Head Office at Chennai released a   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. A sum of Rs.15   lacs was retained out of the approved amount of Rs.3.75   crores towards payment to PNB Capital Finance.”  

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17.  The Trial Court, while entertaining the application filed under  

Section  311  Cr.P.C.,  had  asked  the  appellant  to  provide  a  brief  

summary of  the nature of  evidence  that  would be provided by the  

defence witnesses mentioned in the application, and 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 a 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 a 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  

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appellant  as  regards  her  defence,  which  tantamounts  to  a  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  a  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 a 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 a  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 conclusive.  In  

such a 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 a position to depose with respect to whether  

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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 a 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  

a just decision.  

Furthermore,  the same is not  a 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  

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the  learned  Trial  Court  is  requested  to  fix  a  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.

………………………………..................................J.                   (Dr. B.S. CHAUHAN)

………………………………...................................J. (FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI; May 8, 2013

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