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2006 DIGILAW 2090 (PNJ)

Kala Ram v. State Of Haryana

2006-05-12

SATISH KUMAR MITTAL

body2006
Judgment Satish Kumar Mittal, J. 1. Petitioner Kala Ram, who is facing trial in case No. 63 N.D.P.S. Act, F.I.R. No. 105 dated 26.2.2001 under Sections 15/61/85 of the N.D.P.S, Act at Police Station, Ratia, has filed the instant petition under Section 482 Cr.P.C. challenging the order dated 27.9.2004 passed by the Additional Sessions Judge, Fatehabad, whereby while allowing the application filed by the prosecution under Section 311 Cr.P.C. at the stage of pronouncement of the judgment, has permitted it to re-examine MHC Om Parkash of Police Station, Ratia along with the record in order to prove the deposit of the case property at Police Station, Ratia. 2. In this case, the prosecution filed the aforesaid application under Section 311 Cr.P.C. when the arguments were heard and the case was posted for final judgment, at that stage, the prosecution want to summon MHC Om Parkash, Police Station, Ratia along with register No. 19 regarding entry of the deposit of the case property in case FIR No. 192 dated 26.2.2001 registered under the NDPS Act. It is submitted that the Investigating Officer-PW5 and another recovery witness PW4 had testified that a sample of 200 grams was taken from the poppy husk, which was recovered from the accused. However, PW6-MHC Om Parkash in his affidavit has given the weight of the parcel as 100 grams. It has been stated by the prosecution that in the affidavit filed by the MHC, it was by clerical mistake stated that the sample was of 100 grams and the said clerical mistake was somehow overlooked when the said affidavit was filed in the Court. In view of the said clerical mistake, the prosecution wants to recall the MHC along with the police record for showing that one of the sample, which was deposited with him, was 200 grams and the same was sent for chemical examination. 3. The aforesaid application has been allowed by the trial Court while observing that the evidence sought to be produced by the prosecution is required for just decision of the case. The said order has been challenged by the accused in this petition. 4. Learned Counsel for the petitioner submitted that the prosecution filed the aforesaid application at the belated stage when the case was posted for final judgment. At that stage, the trial Court was not competent to entertain such an application and allow the same. The said order has been challenged by the accused in this petition. 4. Learned Counsel for the petitioner submitted that the prosecution filed the aforesaid application at the belated stage when the case was posted for final judgment. At that stage, the trial Court was not competent to entertain such an application and allow the same. Learned Counsel further submitted that when the case is posted for judgment, the trial stands terminated and the power under Section 311 Cr.P.C. cannot be invoked which can be exercised only at any stage of the trial. Since the case was posted for final judgment, therefore, the trial stands terminated. Thus, the trial Court was having no power under Section 311 Cr.P.C. to permit the prosecution to lead the aforesaid evidence. In support of his contention, learned Counsel for the petitioner relied upon the decision of the Kerala High Court in Sajeendran v. Thalakulahoor Grama Panchayath, (Kerala) 2004(1) R.C.R. (Criminal) 611 in which it has been held that when a case is posted for judgment, the trial stands terminated and at that stage the trial Court has no jurisdiction to allow the prosecution to lead the evidence. 5. After hearing arguments of the learned Counsel for both the parties and going through the impugned order, I do not find any merit in the instant petition. The powers of the Court under Section 311 Cr.P.C. are very wide. It contains two parts. First part enables the Court at any stage of any inquiry, trial or other proceeding under the Code (i) to summon any person as a witness; (ii) to summon any person, who is in attendance, though not summoned as a witness, or to re-call and re-examine any person already examined. The second part enables the Court to summon, examine and recall or re-examine any person, if his evidence appears to be essential for just decision of the case. The first part of the Section gives a discretion to the Court and in the second part, it is obligatory on the Court to summon and examine or recall and re-examine any witness where the evidence of such witness is essential for the just decision of the case. The provisions of Section 311 of the Code cannot be interpreted so as to limit the powers of the Court to examine witnesses only before the conclusion of the arguments. The provisions of Section 311 of the Code cannot be interpreted so as to limit the powers of the Court to examine witnesses only before the conclusion of the arguments. The Court can permit any witness to be examined or re-examined at any stage. When the Court is satisfied that the evidence of a particular witness is necessary for the just decision of the case, it is bound to summon the said witness and record his evidence under the second part of Section 311 of the Code. Merely because the arguments have been heard in a case and the case had been posted for judgment, is no ground for limiting the scope of the passing of order under Section 311 of the Code. 6. I do not find any force in the contention of the learned Counsel for the petitioner that trial in a case stands terminated when the case is posted for pronouncement of a judgment. It is well settled that trial stands terminated with the pronouncement of the judgment and not before that. After considering the case law in detail, a Division Bench of the Allahabad High Court in Ram Jeet and Ors. v. The State has held that a trial is terminated by the pronouncement of the judgment and so long as a judgment has not been pronounced, the trial is not terminated, even though the judgment itself may not be part of the trial. It was further held that the powers conferred by this Section (Section 540 of Criminal P.C. 1898) can be exercised at any stage of the enquiry or trial. An enquiry or trial comes to an end when the judgment or order is pronounced and until then the Court has power to act under this Section. Thus, a fresh witness can be summoned and examined even where the evidence on both sides is closed and the case is posted for judgment. Similar view was taken by a Division Bench of this Court in Sukhdev Singh v. State of Punjab 1982 Crl.L.J. 2201, wherein it was held it cannot be laid down as a general rule that in no case additional witnesses be called by the Judge at the suggestion of the prosecution, before the close of the trial of the case, where the defence has been closed or the arguments have been heard. Trial comes to an end with the pronouncement of the judgment, though judgment itself may not be part of the trial. The discretion under Section 311 can be exercised by the Court at any stage of the case, but on justifiable grounds. The mere fact that additional evidence is permitted to be taken the entire prosecution case is over is not in itself in excess of the powers of the Court. No hard and fast rules can be prescribed as to when and at what stage this discretion should be exercised. 7. In Chandra Shekhar v. State of Rajasthan 1992 Crl.L.J. 4039, it has been held by the Rajasthan High Court that Section 311 provides that the Court may pass such order at any stage of the trial and it may summon any person as witness even if it had not been summoned earlier, may recall any person already examined. Thus, because the arguments had been heard and the case at one stage had been posted for judgment is no ground to limit the scope of passing of the order under Section 311 Cr.P.C. as the order has been passed on the application filed by prosecution and the Court has not passed the order suo motu. 8. Thus, in my opinion, whether or not after the entire evidence is over, the Court should permit the prosecution to lead further evidence, will depend on the facts of each case. The Magistrate has to exercise caution in using his power under Section 311 Cr.P.C. He has to form an opinion whether it is necessary to record the statement of any witness at that stage. In the instant case, the Magistrate has permitted the prosecution to lead the evidence at that stage while coming to the conclusion that re-examination of MHC Om Parkash of Police Station, Ratia is necessary for just decision of the case. The Investigating Officer (PW5) and one of the recovery witness (PW4) had clearly testified that a sample of 200 grams was taken from the poppy husk, which was recovered from the accused, but in the affidavit of MHC Om Parkash, the weight of the sample was given 100 grams, which according to the prosecution was mere clerical mistake. The Investigating Officer (PW5) and one of the recovery witness (PW4) had clearly testified that a sample of 200 grams was taken from the poppy husk, which was recovered from the accused, but in the affidavit of MHC Om Parkash, the weight of the sample was given 100 grams, which according to the prosecution was mere clerical mistake. To clarify and remove the said clerical mistake, the re-examination of MHC Om Parkash with the record was found to be essential for just adjudication of the case because in register No. 19 entry regarding deposit of the case property was made as 200 grams. In my opinion, the impugned order dated 27.9.2004 passed by the Additional Sessions Judge, Fatehabad is fully in conformity with the scope of Section 311 Cr.P.C. and the same does not suffer from any infirmity whatsoever, rather the passing of this order was necessary to advance the interest of justice and fair trial. 9. Hence, this petition has no merit and the same is hereby dismissed.