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2012 DIGILAW 1603 (PNJ)

Jaswant Rai v. State of Punjab

2012-11-08

SABINA

body2012
JUDGMENT Sabina, J. Petitioner has filed this petition under Section 482 of the Code Criminal Procedure, 1973 (for short `Cr.P.C.) for quashing impugned order dated 2.2.2011 (Annexure P1) passed by the Addl. Sessions Judge, whereby the application moved by the prosecution under Section 311 Cr.P.C. for recalling PW2 and PW3 for re-examination was allowed in a case FIR No.107 dated 25.9.2008 registered at Police Station Balachaur District Nawanshahr under Section 302 of the Indian Penal Code (for short `IPC') . Learned counsel for the petitioner has submitted that PW2 and PW3 were examined in chief and then cross-examined by the defence counsel. Hence, the said witnesses could not be recalled for re-examination. The Court was to decide the case in view of the statements made by the witnesses. Learned State counsel, on the other hand, has opposed the petition. Learned State counsel has submitted that it was necessary to re-examine PW2 and PW3 for the just decision of the case. It was necessary to ask the said witnesses as to whether what they had stated in their examination-in-chief was liable to be believed or what they had stated in their cross-examination was liable to be believed. After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. Section 311 Cr.P.C. reads as under:- “311 Power to summon 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 if his evidence appears to it to be essential to the just decision of the case.” Thus, as per the above provisions, the Court has the power to summon the witness for re-examination, if it was essential for the just decision of the case. In the present case, examination-in-chief of PW2 was completed. Part of his cross-examination was conducted on same date and thereafter his further cross-examination was deferred and was conducted on the adjourned date. However, examination-in-chief and cross-examination of PW3 were conducted on the same day. The said witnesses had given their statements. The Court is required to decide the case in terms of the statements made by the witnesses. Part of his cross-examination was conducted on same date and thereafter his further cross-examination was deferred and was conducted on the adjourned date. However, examination-in-chief and cross-examination of PW3 were conducted on the same day. The said witnesses had given their statements. The Court is required to decide the case in terms of the statements made by the witnesses. In this regard, the witnesses i.e. PW2 and PW3 could not be re-summoned to tell the Court as to which part of their statement was correct i.e. examination-in-chief or the cross-examination. Examination-in-chief had been conducted by the public prosecutor and thereafter the witnesses were cross-examined by the defence counsel. At that stage, the public prosecutor had not sought the permission for re-examination of the witnesses. The trial Court cannot call the said witnesses for re-examination to seek their explanations qua the statements made by the witnesses before the said Court. The duty lies with the Court to analyze the statements of PW2 and PW3 and thereafter decide case in accordance with law. However, the trial Court fell in error in obtaining the summoning of PW2 and PW3 for re-examination for rendering explanation qua their statements. Accordingly, this petition is allowed. Impugned order dated 2.2.2011 (Annexure P1) is set aside.