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2001 DIGILAW 1266 (PNJ)

Darbara Singh v. State Of Punjab

2001-11-09

V.M.JAIN

body2001
Judgment V.M.Jain, J. 1. This is a petition under Section 482 Cr.P.C. filed by the accused-petitioner, seeking the quashment of the order dated 17.4.1998, copy Annexure P-2, passed by the Additional Sessions Judge (Special Judge), Sangrur, in a case under the NDPS Act. 2. The facts which are relevant for the decision of the present case are that Darbara Singh petitioner is an accused in a case bearing FIR No. 26 dated 8.2.1993, under Section 15 of the NDPS Act, registered in Police Station, Dhuri. After investigation of the FIR, the challan was submitted in the Court. After prosecution evidence was examined, the learned Additional Public Prosecutor, vide statement dated 20.9.1997, copy Annexure P-1, closed the prosecution evidence after giving up HC Budh Singh being unnecessary and after tendering into evidence affidavit Ex.PH of Constable Gurpreet Singh. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded and the case was fixed for defence evidence. At that stage, the prosecution filed an application under Section 311 Cr.P.C. for permission to recall Constable Gurpreet Singh, for the purpose of cross-examination, alleging therein at the time when the affidavit of constable Gurpreet Singh was tendered into evidence, he was not offered for cross examination. It was alleged that Constable Gurpreet Singh was required to be summoned for the purposes of his cross examination by the accused. The said application of the prosecution was contested by the accused by filing reply, alleging therein that there was no necessity of calling constable Gurpreet Singh for his cross examination. It was further alleged that last opportunity had been given to the prosecution for 20.9.1997 and as such no case for summoning Constable Gurpreet Singh by way of additional evidence was made out. The learned Additional Sessions Judge (Special Judge) after hearing both sides and after perusing the record, vide order dated 17.4.1998, allowed the aforesaid application under Section 311 Cr.P.C. of the prosecution and allowed the prosecution to summon Constable Gurpreet Singh for the purposes of his cross examination (by the accused) with a rider that only one adjournment will be granted to the prosecution to produce Constable Gurpreet Singh for his cross examination. Aggrieved against the order of the learned Special Judge, accused Darbara Singh has filed the present petition under Section 482 Cr.P.C. in this Court, alleging therein that no case was made out for allowing the prosecution to examine Constable Gurpreet Singh, for the purposes of his cross examination. 3. At the time when the case came up for motion hearing, this Court vide order dated 4.5.1998, had ordered the issuance of "notice" to AG, Punjab and in the meanwhile, operation of the impugned order was stayed and record of the case was ordered to be summoned. 4. In the written reply filed on behalf of the State, it was alleged that the evidence of Constable Gurpreet Singh was formal in nature and as such his affidavit was tendered in evidence. It was further alleged that no prejudice had been caused to the accused by recalling Constable Gurpreet Singh for the purposes of his cross examination by the accused and that non-cross examination of the witness may cause prejudice to the accused. The trial Court record was also received in pursuance of the directions given by this Court. 5. I have heard the learned counsel for the parties and have gone through the record including the trial Court record carefully. 6. The learned counsel for the accused-petitioner has submitted that no case was made out for allowing the prosecution to produce additional evidence at this stage, especially when the prosecution evidence had been closed, statement of accused under Section 313 Cr.P.C. had been recorded and the accused had already disclosed his defence. Reliance has been placed on the law laid down by this Court, in the cases reported as Bhagwan Singh v. State of Punjab, 1988(2) RCR 46 (P&H) and Budh Ram v. State of Punjab and others, 1996(2) CLR 299. 7. A perusal of the trial Court record would show that on 20.9.1997, the prosecution had examined PW4 Surjit Singh, SP, Headquarter, Mansa and PW5 ASI Surinder Pal Singh. Thereafter, the Additional Public Prosecutor had made the statement giving up HC Budh Singh as unnecessary and the affidavit of Constable Gurpreet Singh was tendered into evidence as Ex.PH and the prosecution evidence was closed. Thereafter, the Additional Public Prosecutor had made the statement giving up HC Budh Singh as unnecessary and the affidavit of Constable Gurpreet Singh was tendered into evidence as Ex.PH and the prosecution evidence was closed. Thereafter, the case was adjourned to 7.10.1997 for recording the statement of the accused under section 313 Cr.P.C., on which date the statement of the accused was recorded and the case was adjourned to 22.11.1997 for defence evidence. On 22.11.1997, 6.12.1997, 23.12.1997, 12.1.1998 and 16.1.1998, no defence evidence was present and the case was adjourned to various dates. It was on 26.2.1998 that two defence witnesses were present and were examined on the same date, the learned Additional Public Prosecutor moved an application under Section 311 Cr.P.C. for summoning Constable Gurpreet Singh. Its copy was given to the counsel for the accused and the case was adjourned to 12.3.1998 for reply to the said application and for remaining defence witnesses. On 12.3.1998, no reply was filed and the case was adjourned to 16.3.1998 for reply and consideration and for DWs. On 16.3.1998, reply was filed and the case was adjourned to 20.3.1998 and again to 17.4.1998 for consideration. On 17.4.1998, after hearing both sides, the learned Additional Sessions Judge (Special Judge), allowed the application of the prosecution under Section 311 Cr.P.C. subject to the condition that only one adjournment shall be granted and the case was adjourned to 29.4.1998. On 29.4.1998, the statement of Constable Gurpreet Singh was recorded and the case was adjourned to 15.5.1998 for remaining defence evidence and for arguments. In the meanwhile, the order dated 4.5.1998 was passed by this Court, staying further proceedings in this case. 8. In the application dated 26.2.1998 under Section 311 Cr.P.C., it was alleged by the Additional Public Prosecutor that on 20.9.1997, the affidavit of Constable Gurpreet Singh was tendered by him into evidence and that the cross-examination of the witness was required and that he may be summoned for the purposes of his cross examination and it was prayed that the application be allowed. In the written reply dated 16.3.1998, it was alleged that the affidavit of Constable Gurpreet Singh was tendered into evidence on 20.3.1997 and it is only in the knowledge of the Additional PP as to what was the necessity to call the Constable and filing this application for summoning him. 9. In the written reply dated 16.3.1998, it was alleged that the affidavit of Constable Gurpreet Singh was tendered into evidence on 20.3.1997 and it is only in the knowledge of the Additional PP as to what was the necessity to call the Constable and filing this application for summoning him. 9. In my opinion, the learned Additional Sessions Judge (Special Judge), was perfectly justified in allowing the prosecution to produce Constable Gurpreet Singh for the purposes of his cross examination. The prosecution had tendered affidavit of Constable Gurpreet Singh into evidence. However, he was not put up for the cross examination. As such the evidence of this witness (in the form of affidavit) could not be considered. Keeping this fact in view the Additional Public Prosecutor had filed the application under Section 311 Cr.P.C. for summoning Constable Gurpreet Singh for the purposes of cross examination. 10. As referred to above, the impugned order was passed by the learned Additional Sessions Judge on 17.4.1998 and in pursuance of the said order, the witness was summoned for 29.4.1998 on which date the statement of Constable Gurpreet Singh was recorded, by way of cross examination. No objection of any kind was taken by the accused-petitioner at that time. On the other hand, the counsel for the accused had cross examined Constable Gurpreet Singh, when he was examined as PW6 in this case by the prosecution and when he had tendered his affidavit Ex.PH into evidence. After the statement of Constable Gurpreet Singh, which had been recorded in pursuance of the aforesaid order dated 17.4.1998, passed by the learned Additional Sessions Judge, the accused- petitioner filed the present petition dated 1.5.1998 in this Court. In this petition, it was no where disclosed by the petitioner that in pursuance of the order dated 17.4.1998, Constable Gurpreet Singh had already been examined by the prosecution and cross examined by the accused on 29.4.1998. Be that as it may. The facts remain that the prosecution had summoned Constable Gurpreet Singh not for the purposes of examination-in-chief but for the purposes of cross examination by the accused because at the time when his affidavit was tendered into evidence, Constable Gurpreet Singh was not tendered to the accused for the purposes of cross examination. Be that as it may. The facts remain that the prosecution had summoned Constable Gurpreet Singh not for the purposes of examination-in-chief but for the purposes of cross examination by the accused because at the time when his affidavit was tendered into evidence, Constable Gurpreet Singh was not tendered to the accused for the purposes of cross examination. It was only on this account that the Additional Public Prosecutor moved the application for summoning Constable Gurpreet Singh by way of additional evidence under Section 311 Cr.P.C. 11. In Bhushan Thapar v. M/s Ganesh Steel Corporation and others, 2001(1) Recent Criminal Reports 173, this Court had allowed the complainant to produce the additional evidence and while doing so, this Court had set aside the orders passed by the Courts below, dismissing the application of the complainant for additional evidence. In the said authority, reliance was placed on the law laid down by the Honble Supreme Court in the case reported as Mohanlal Shamji Soni v. Union of India and another, 1991(3) Recent Criminal Reports 182. In the said authority, it was held by the Honble Supreme Court that Provisions of Section 540 of the old Code (Section 311 of the new Code) were enacted in order to enable the Court to find out the truth and to render the just decision. It was further held that under the said provisions, any Court by exercising its discretionary authority at any stage of inquiry, trial or other proceedings can summon any person as a 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, because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. In Hari Ram v. State of Haryana, 2001(1) Recent Criminal Reports 786, this Court had allowed the petition filed by the petitioners (in a State case) and had allowed the prosecution to examine the Doctor by way of additional evidence. This was done even after the prosecution evidence had been closed by the learned Magistrate by the order of the Court and the statement of the accused had already been recorded under Section 313 Cr.P.C. 12. This was done even after the prosecution evidence had been closed by the learned Magistrate by the order of the Court and the statement of the accused had already been recorded under Section 313 Cr.P.C. 12. The authorities 1996(2) CLR 299 (supra) and 1988(2) RCR 46 (supra) relied upon by the learned counsel for the accused-petitioner, in my opinion, would have no application to the facts of the present case. 13. As referred to above in the present case, there would be no question of the accused-petitioner being prejudiced by summoning Constable Gurpreet Singh by way of additional evidence for the purposes of cross examination by the accused. Nothing new is brought by the prosecution. The witness has been summoned only for the purposes of the cross examination by the accused. Furthermore, there would be no question of the accused having disclosed his defence and thereafter the prosecution having allowed to produce some new evidence. On the other hand, in the present case, the prosecution had already produced its evidence including the affidavit of Constable Gurpreet Singh. The same was taken into evidence by the Court. Since, Constable Gurpreet Singh was not tendered for the purposes of cross examination by the accused, the learned Additional Public Prosecutor moved application under Section 311 Cr.P.C. for examining Constable Gurpreet Singh. If the accused did not want to cross examine Constable Gurpreet Singh, there could be no need to summon constable Gurpreet Singh for the purposes of cross examination. If the accused wanted to cross examine Constable Gurpreet Singh, it was to his own advantage. As referred to above, nothing new was brought on the record by the prosecution. Furthermore, after the cross examination of Constable Gurpreet Singh, the accused still would have the opportunity to produce defence evidence, if any, in support of his case. Under these circumstances, it cannot be said that the accused-petitioner had been prejudiced in any manner whatsoever merely because the learned Additional Sessions Judge had allowed the prosecution to examine Constable Gurpreet Singh for the purposes of cross examination by the accused. 14. In view of my detailed discussion above, in my opinion, no fault could be found with the order dated 17.4.1998, passed by the learned Additional Sessions Judges (Special Judge), allowing the prosecution to examine Constable Gurpreet Singh by way of additional evidence under Section 311 Cr.P.C. 15. 14. In view of my detailed discussion above, in my opinion, no fault could be found with the order dated 17.4.1998, passed by the learned Additional Sessions Judges (Special Judge), allowing the prosecution to examine Constable Gurpreet Singh by way of additional evidence under Section 311 Cr.P.C. 15. For the reasons recorded above, finding no merit in this petition, the same is hereby dismissed. 16. Parties through their counsel are directed to appear before the learned trial Court on 20.12.2001, for further proceedings in accordance with law. In this case the trial Court record had been summoned by this Court. The offence (office ?) is directed to send back the record to the trial Court forthwith along with a copy of this order for further proceedings.