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1998 DIGILAW 854 (RAJ)

Prem Raj v. State of Rajasthan

1998-08-10

A.K.SINGH

body1998
Judgment Amaresh Kumar Singh, J.-Heard the learned counsel for the petitioner and the learned Public Prosecutor. 2. By this petition under Section 482 of the Criminal Procedure Code, 1973, learned counsel for the petitioner has prayed that the order dated 5th March, 1997 passed by the Judicial Magistrate, Bar in Criminal Original Case No. 135/96 be quashed and set aside it (as) it amounts to the abuse of the process of the Court. 3. Learned counsel for the petitioner has submitted that in criminal case No. 130/96, State vs. Sugan Chand & Ors., the petitioner Deep Chand and Prem Chand were examined as prosecution witnesses. Both of them were cross-examined at great length and as such it cannot be said that the accused persons were denied the opportunity of cross-examination of the petitioners but on 13-9-95, an application was submitted on behalf of the accused persons (who are non-petitioners Nos. 2 to 7) to recall the petitioner under Section 311 of the Criminal Procedure Code, 1973 for further cross-examination and that application was allowed by the learned Judicial Magistrate by the impugned order dated 5th March, 1997, without any cogent and satisfactory reasons and, therefore, the impugned order dated 5th March, 1997 deserves to be quashed and set aside as it amounts to the abuse of the process of the Court. 4. Learned Public Prosecutor has supported the impugned order passed by the learned Judicial Magistrate, under Section 311 of the Criminal Procedure Code, 1973. Section 311 of the Criminal Procedure Code, 1973 reads as under: 311 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. 5. A perusal of this Section makes it clear that under Section 311, Cr.P.C. power has been given to the Court to examine, or re-examine any. person as a witness, if the Court considers it necessary to do so for the just decision of the case. 5. A perusal of this Section makes it clear that under Section 311, Cr.P.C. power has been given to the Court to examine, or re-examine any. person as a witness, if the Court considers it necessary to do so for the just decision of the case. If this Section is read with Section 165 of the Evidence Act, it would be clear that the power under Section 311 of the Criminal Procedure Code and Section 165 of the Evidence Act is conferred on the Court and not on the parties and, therefore, it is the Court alone which can exercise the powers under Section 311 of the Criminal Procedure Code if the Court is of the opinion that, it is necessary to do so for the just decision of the case. The examination and re-examination which is contemplated by Section 311 of the Cr.P.C. and Section 165 of the Evidence Act is to be made by the Court and not by the parties. Viewed in this light, if the power under Section 311 of the Criminal Procedure Code, 1973 is used by the Court for the purpose of enabling any party to examine or re-examine the witness, it would be impermissible to do so. Ofcourse, the Court has unfettered powers to examine and re-examine any witness under Section 311 of the Cr.P.C. at any time in any inquiry or trial. 6. The rights of the parties to examine and cross-examine the witness are regulated by the provisions contained in Chapters 18, 19, 20 and 21 as well as by Sections 137 to 161 of the Evidence Act. In a warrant case, the trial before the Magistrate is to be conducted in accordance with the provisions contained in Chapter XIX of the Criminal Procedure Code, 1973. Chapter XIX is in two parts. Part A prescribes procedure for cases instituted on a police report and Part B of the Chapter XIX prescribes procedure for the cases instituted otherwise than on police report. In the instant case, the case was instituted on a police report and, therefore, Part A of the Chapter 19 is applicable. Section 242 of the Cr.P.C. deals with Evidence for the Prosecution. Section 243 of the Cr.P.C. deals with evidence for offence. In the instant case, the case was instituted on a police report and, therefore, Part A of the Chapter 19 is applicable. Section 242 of the Cr.P.C. deals with Evidence for the Prosecution. Section 243 of the Cr.P.C. deals with evidence for offence. Sub-section (3) of Section 242 of the Criminal Procedure Code, 1973 provides that on the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution, provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination. A bare reading of Sub-section (3) of Section 242 of the Criminal Procedure Code shows that the Magistrate con-ducting trial is empowered to defer the cross-examination of any prosecution witness or wit-nesses who have been examined or recall any witness for further cross-examination. The powers given by Sub-section (3) of Section 242 of the Criminal Procedure Code, 1973 are judicial powers and must be exercised in a judicial manner. Besides, the provisions contained in Sub-section (3) of the Section 242 of the Cr.P.C. in the nature of special provisions and, therefore, the general provisions contained in Section 311 of the Criminal Procedure Code, 1973 cannot be invoked by the accused for recalling any witness for cross-examination. 7. For the reasons mentioned above, the impugned order dated 5th March, 1997 passed by the learned Judicial Magistrate, Bar is not covered by Section 311 of the Criminal Procedure Code. Having regard to all the facts and circumstances of the case, the order cannot be said to be justified even under the proviso given below in Sub-section (3) of the Section 242 of the Criminal Procedure Code, 1973. Even in the matter of cross-examination, the parties must proceed with hearing of the case in accordance with law. If the accused is/are of the opinion that the cross-examination of one or more witnesses be deferred under the proviso to Sub-section (3) of the Section 242, a prayer for deferring cross-examination should be made at proper time under the proviso to Sub-section (3) of the Section 242 of the Criminal Procedure Code. If the accused is/are of the opinion that the cross-examination of one or more witnesses be deferred under the proviso to Sub-section (3) of the Section 242, a prayer for deferring cross-examination should be made at proper time under the proviso to Sub-section (3) of the Section 242 of the Criminal Procedure Code. If an application for recall of any witness for further cross-examination is made under the proviso to Sub-section (3) of the Section 242 of the Criminal Procedure Code, 1973, it must be supported by sound reasons. In the instant case, I do not find any good reason for allowing the application moved by the accused persons. 8. In view of the aforesaid conclusion, the petition deserves to. be allowed and is hereby allowed and the impugned order dated 5th March, 1997 passed by the learned Judicial Magistrate, Bar, is hereby quashed and set aside. Nothing contained in this order which prevent the Magistrate from exercising the power under Section 311 of the Criminal Procedure Code,. 1973 at any time, if he judicially considers, if necessary to examine or re-examine any witness for the just decision of the case. This petition is disposed of accordingly.