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2004 DIGILAW 372 (PAT)

Jitendra Mohan v. State Through Vigilance

2004-04-05

V.N.SINHA

body2004
Judgment 1. The petitioner is invoking this Courts power under section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) for quashing the order dated 21.1.2004, passed by the special Judge Vigilance, Patna, in Special case No. 80 of 1991 whereby the court, in exercise of its power under section 311 of the Code ordered for recalling P.W. Nos. 13 and 5 for re-examination. The impugned order shows that the case was fixed on 31.1.2004 for judgment but on perusal of the evidence of witnesses the court found that some positive photographs alleging that those were photographs the accused along with his family members and candidates which were photographed in Bombay were proved and marked as material Ext. l but the attention of the witnesses was not drawn towards the" identity of the persons as to whom the photographs was Therefore, feeling difficulties in just and proper decision of the case he ordered for recalling the two witnesses for drawing their attention towards the facts as to whose photographs it was and therefore, exercising powers under section 311 Cr. P.C. the learned Special Judge order for recalling of the witnesses. 2. The provisions under section 311 of the Code of Criminal Procedure reads as follows : "Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as witness, or examine any person in attendence, 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." 3. Thus the provision gives a wide power to the court to recall and re-examine any witness at any stage of the trial if such examination is necessary for the just decision of the case. 4. The learned counsel for the petitioner has argued that no doubt there are such powers under section 311 of the Code but it is subject to some limitations. It was argued that the court can recall or re-examine any witness but this power cannot be used for filling in the lacuna in the case of either side. The petitioners counsel cites the decision in the case of Balbant Singh vs. The State of Rajsthan report in 1986 Cr. L.J. 1374. It was argued that the court can recall or re-examine any witness but this power cannot be used for filling in the lacuna in the case of either side. The petitioners counsel cites the decision in the case of Balbant Singh vs. The State of Rajsthan report in 1986 Cr. L.J. 1374. In this case two witnesses P.W. 2 and 3 were ordered to be recalled by the court under section 311 of the Code for clarification of the matter whether "Grhasi" and "Darat" were used from blunt side or the sharp edges side by the three persons causing injuries to the injured. Under these facts the High Court of Rajsthan held that the court was not justified to use its power under section 311 in recalling the witnesses for that purpose. From the facts of the case it is clear that the examination of the two witnesses would amount to an attempt to fill in the lacuna in the case of the prosecution and therefore, the court was not allowed to use its power under section 311 of the Code. The petitioners counsel further cited the case of Pyara Singh and others vs. The State of Punjab reported in 1978 Cri. L.J. 771. In that case when the accused had closed their defence the trial court had allowed prosecution to allow further evidence to explain delay in lodging of the F.I.R. The Punjab and Haryana High Court did not find it a fit case of exercising powers by the trial court under section 311 of the Code. 5. Two decisions cited by the learned counsel for the petitioner relate to facts which are of the nature that did not permit the trial court to invoke its power under section 311 of the Code due to the reasons that the exercise of the power amounted to filling in the lacuna of the case of either side and it was not a case of exercising the powers for the just decision of the case. 6. So far the instant case is concerned, the Special Judge on appreciating the evidence at the time of recording his judgment came to the finding that some photographs were proved and exhibited by the P.W. 13 but the attentions of the witnesses were not drawn towards the fact as to whose photographs it was. The special Judge ordered for recalling the P.Ws. The special Judge ordered for recalling the P.Ws. 13 and 5 for drawing their attention towards that fact. The P.W. 13 is said to be the informant and P.W. 5 is another witness who is said to be a hostile one. The learned counsel for the petitioner argued that the court is not justified in recalling the witness under section 311 of the Code as according to the learned counsel this would go to fill in the lacuna in the case of the prosecution. 7. The learned special P.P. argued that P.W. 13, the informant has stated about the prosecution case but P.W. 5 being a hostile witness cannot be said to be interested witness for the prosecution. The learned Special P.P. also argued that at this stage the recalling of the witnesses by the Special Judge cannot be said to be an attempt of the court for filling in lacuna in the case of either side. It was argued that when witnesses are recalled and their attention is drawn towards the facts as to whom the photographs relate the court will be able to come to a just decision of the case. It was also argued that it cannot be said at this stage that the witnesses when recalled will depose in favour of either side. Moreover when the trial court in its sub-jective satisfaction finds it necessary for the just decision of the case to recall the witnesses to clarify the matter as to whom the photograph relates the case is squarely covered within the powers of Code under section 311 of the Code. 8. Having heard learned counsel for the parties and considering the facts and circumstances of the case, I do not find it a fit case to interfere with the impugned order passed by the learned Special Judge. The application is therefore, dismissed.