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2005 DIGILAW 224 (JK)

Banarsi Lal v. Baldev Raj

2005-08-11

NIRMAL SINGH

body2005
1. This is a petition under section 561-A Cr. P. C ( for short code hereafter) for quashing the order of learned 3rd Additional Sessions Judge, Jammu, dated 9.6.2004 whereby the application of the prosecution to re-call Dr. Raj Kumar Sangra, to prove the MLRs of Vijay Kumar and Naresh Kumar, has been rejected. 2. The relevant facts for disposal of this petition are that respondents are facing trial under Sections 307, 326, 324, 325, 148, 149 RPC on the allegations that on 22.7.2001 accused persons have caused injuries to complainant Naresh Kumar, his father Banarsi Dass and brother Vijay Kumar at Kotli Arjun Singh, R.S.Pura, Jammu. 3. Prosecution has examined many witnesses including Dr. Raj Kumar Sangra. The evidence of the prosecution was closed on 14.11.2003. The prosecution moved application under Section 540 Cr.P.C to re-call Dr. Raj Kumar Sangra and to prove the MLRs of injured Vijay Kumar and Manohar Lal. Respondents contested the application and the learned trial court dismissed the application by observing as under:- "In this case the evidence of the prosecution was closed on 14.11.2003. The statement of P.W.Dr. Raj Kumar Sangra was recorded on 10.7.2002 and the prosecution maintained silence till 16.9.2003 when the application was moved for re-summoning of that witness the prosecution has not challenged the order of closure of evidence but used section 540 Cr.P.C as back door entry to get the order of closure of evidence reviewed to re-open the prosecution case for examination witnesses seeking the exercise of the jurisdiction by the court which is not vested in it. Moreover the prosecution has already been given opportunity to examine P.W.Dr. Raj Kumar Sangra whose statement is already on the record and if prosecution has not asked and question or has left any lacuna at relevant time, the prosecution cannot be allowed to recall the witness again as the provision u/s 540 is not meant to fulfill the gap left by the prosecution in the case." 4. I have heard the learned counsel for the parties and perused the record. The issue which has to be determined in this petition is as to whether after closure of the evidence of the prosecution, prosecution witness cannot be recalled even if his evidence is necessary for the just decision of the case. I have heard the learned counsel for the parties and perused the record. The issue which has to be determined in this petition is as to whether after closure of the evidence of the prosecution, prosecution witness cannot be recalled even if his evidence is necessary for the just decision of the case. To appreciate this point, it will be appropriate to notice the provisions of Section 540 Cr.P.C, which reads as under:- "540. Power to summon the 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 of his evidence appears to it essential to the just decision of the case". 5. Perusal of the above Section shows that there is no bar for re-calling or re-examining any witness already examined at any stage of enquiry or trial or other proceedings under the Code, if recalling or re-examining of such witness is essential for the just decision of the case. The legislature in its wisdom has used the word " at any stage of inquiry, trial or other proceeding under this Code, summon any person as a witness". At any stage used in the section clearly indicates that the witness can be summoned even after the closure of evidence of the prosecution as well as of defence but before termination of the trial. The Apex Court in Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178, has held as under:- "Chapter 21 of Cr.P.C does not restrict the powers of Criminal Court under S. 540. Section 540 Criminal Procedure Code and Section 165 Evidence Act, between them confer a wide discretion on the court to act as the exigencies of justice require. Section 540 is intended to be wide as the repeated use of the word `any throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word `may in the first part and of the word `shall in the second firmly establishes this difference. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word `may in the first part and of the word `shall in the second firmly establishes this difference. As the section stands there is no limitation on the powers of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. There is, however, the other aspect namely exercised to reach a just decision. This power is exercisable at any stage." 6. But the power under Section 540 of the Code is not to be exercised to fill up the lacuna left by the prosecution or by the defence. In Rajendra Prasad v. Narcotic Cell through its Officer-in-charge Delhi, AIR 1999 SC 2292, their lordships have held as to what is the lacuna and which lacuna should not be allowed to be filled up either by the prosecution or by the defence, by observing 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." 7. In the case in hand Dr. Raj Kumar Sangra has medically examined the injured persons. 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." 7. In the case in hand Dr. Raj Kumar Sangra has medically examined the injured persons. The prosecution has attached the MLRs and Radiologist reports of all the injured persons with the challan. Dr. Raj Kumar Sangra when examined, has proved the MLR of Banarsi Lal but has left to prove the MLR of Vijay Kumar and Manohar Lal as the same was not put before him by the Public Prosecutor or by the Court. Dr. Raj Kumar Sangra has admittedly examined three injured persons. It was his duty to prove their MLRs. The ground taken in the application is that Public Prosecutor has inadvertently failed to put these MLRs before the Doctor. This inadvertence is not on the part of the prosecution alone but also on the part of Doctor as well as the trial court. When the documents are already on record then it cannot be said that prosecution want to fill up the lacuna. In Rajendra Prasads case (supra) their lordships have observed that the Courts should be magnanimous in permitting such mistakes to be rectified and no party in the trial can be foreclosed from correcting an error. 8. Learned counsel for the respondents placed reliance on Omkar Singh v. State, 1988 KLJ 433 but this judgment is distinguishable on facts. In that case the application of the prosecution was allowed to examine witness after closure of evidence by the court but there was no material on record which the prosecution want to prove, but in the present case the documents, which the prosecution wants to prove, are already on record but due to inadvertence have not been proved by the doctor. 9. In view of the above discussion, the impugned order is set aside and the prosecution is allowed to re-summon Dr. Raj Kumar Sangra to prove the medical reports already on record. However, the prosecution will not be able to produce any other witness except Dr. Raj Kumar Sangra. Record be returned forthwith.