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2006 DIGILAW 374 (CHH)

MUKESH GOSWAMI v. STATE OF CHHATTISGARH

2006-07-26

D.R.DESHMUKH

body2006
D. R. DESHMUKH, J. ( 1 ) AT the request of learned counsel for the applicant, this revision is heard finally today, at. the stage of admission. ( 2 ) THE applicant is aggrieved by the order dated 21. 7. 2006 passed by the Sessions Judge, Ambikapur in Sessions trial No. 298/2004 (State of Chhattisgarh v. Lokendra and Others) under Sections 302, 201 and 120 (B) of IPC whereby the learned Sessions Judge allowed the application filed by the prosecution under section 311 of Cr. P. C. for re-examining investigating officers A. S. I. M. S. Chandel pw-14 and S. I. Subhash Das PW-17. ( 3 ) LEARNED counsel for the applicant has argued that the impugned order is perverse since neither the application nor the impugned order discloses any ground on which the prosecution sought to re-examine the aforesaid witnesses. On the other land, Shri M. P. S. Bhatia, PL for State has argued in support of the impugned order while praying in the alternative that liberty may be granted to the prosecution to make an application under Section 311 of Cr. P. C. before the trial Court for re-examination of the aforesaid witnesses disclosing cogent grounds and the evidence sought to be adduced. ( 4 ) HAVING heard the rival submissions, I have perused the certified copy of the application under Section 311 of cr. P. C. as also the impugned order. In order to exercise the discretion under section 311 of Cr. P. C. , it is necessary that the Court should be satisfied that re-examination of the witness was essential for the just decision of the case. For this purpose, it was necessary for the prosecution to have disclosed the grounds on which witnesses A. S. I. M. S. Chandel pw-14 and S. I. Subhash Das PW-117 were sought to be examined by the prosecution. A perusal of the application dated 21. 07. 2006 under Section 311 of the cr. P. C. does not show any such facts necessitating the re-examination of these witnesses. The learned trial Judge has allowed the application solely on the ground that since the case diary was not available with the prosecution on the date when the examination in chief of the aforesaid two witnesses was recorded, prosecution wanted to throw light upon some important aspects of the case. The learned trial Judge has allowed the application solely on the ground that since the case diary was not available with the prosecution on the date when the examination in chief of the aforesaid two witnesses was recorded, prosecution wanted to throw light upon some important aspects of the case. The impugned order does not disclose any cogent ground for re-examination of the two witnesses. In the absence of any ground mentioned in the application under Section 311 of the Cr. P. C. , to show that re-Bxamination of the abovementioned witnesses was essential for the just decision of the case the discretion exercised by the learned trial Judge in recalling the witnesses for re-examination cannot be said to be in conformity with the mandate of Section 311 of the Cr. P. C. In that view of the matter, the impugned order dated 21. 07. 2006 deserves to be set aside. ( 5 ) IN the result, this revision is allowed. Order dated 21. 07. 2006 is set aside. However, the prosecution shall be at liberty, to make an application under section 311 of Cr. P. C. before the trial court for re-examination of the aforesaid witnesses disclosing cogent grounds and the evidence sought to be adduced. Petition allowed. --- *** --- .