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2012 DIGILAW 993 (PAT)

Anil Ram v. State of Bihar

2012-07-19

AHSANUDDIN AMANULLAH

body2012
JUDGMENT AHSANUDDIN AMANULLAH, J. 1. Heard learned counsel for the petitioner and learned A.P.P. for the State. 2. The present revision application is directed against the order dated 23.07.2002 passed by the Sessions Judge, Muzaffarpur in Sessions Trial No. 357 of 1998 by which he has re-opened the prosecution evidence and directed for recording of the evidence of two witnesses. 3. The case was earlier admitted and the lower court records were called for. The same have since been received. 4. Learned counsel for the petitioner has assailed the order on two grounds. Firstly, he submits that once the court has passed an order closing the prosecution evidence, he cannot re-open the same since it lacks the power of review. The second contention is that after the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) has been recorded, the court cannot go back and call or recall any witness under Section 311 of the Code. Learned counsel submits that the prosecution evidence was closed by the court on 07.01.2002 and thereafter on 05.02.2002 the statement of the accused, that is, the petitioner, has also been recorded on 05.02.2002 under Section 313 of the Code. He submits that the court once having applied its mind and closing the prosecution evidence cannot suo motu review its earlier decision inasmuch as by the impugned order dated 23.07.2002 the prosecution evidence has been re-opened and the statement of two prosecution witnesses has been directed to be recorded. Learned counsel for the petitioner has relied upon the decisions rendered in the following cases:- (i) Keshav Choudhary v. State of Bihar, reported in 2000(3) PLJR 220 for the proposition that power under Section 311 of the Code cannot be used for filling up a lacuna in the prosecution case and that the subordinate courts have no jurisdiction to recall their earlier order closing the case of the prosecution. (ii) Bindeshwari Prasad v. Kali Singh, reported in AIR 1977 SUPREME COURT 2432 for the proposition that there cannot be any recall of an order already passed by the same court under the Criminal Procedure Code. (iii) Sridhar Das v. State of West Bengal, reported in 1996 CRI. (ii) Bindeshwari Prasad v. Kali Singh, reported in AIR 1977 SUPREME COURT 2432 for the proposition that there cannot be any recall of an order already passed by the same court under the Criminal Procedure Code. (iii) Sridhar Das v. State of West Bengal, reported in 1996 CRI. L. J. 813 for the proposition that recall of prosecution witness cannot be allowed to fill up the lacuna of prosecution case brought about by cross-examination of the witness on behalf of the accused; and (iv) Surendra Choudhary v. State of Bihar, reported in 2006 (4) PLJR 147 for the proposition that suo motu re-calling and re-examining the witness by the court under Section 311 of the Code without there being reason and material justifying the same is not permissible. 5. Learned A.P.P. for the State, on the other hand, opposes the application and submits that the order impugned dated 23.07.2002 is a well reasoned order and needs no interference. He submits that the court has rightly given the reason that the prosecution evidence was closed only because the informant of the case, that is, the father of the victim girl, had entered into a compromise with the accused and had thus concluded that recording of evidence of the Investigating Officer as well as the victim girl was important in the case. He has further held that it was essential in the interest of justice to re-open the prosecution evidence and take evidence of the said two witnesses. Learned A.P.P. also submits that a plain reading of Section 311 of the Code would make it quite clear that the power given for calling or re-calling of any person as witness is wide enough as it is not dependent on any stage of any enquiry, trial or other proceeding under the Code. The only stipulation is that the evidence of such person must appear to be essential to the just decision of the case. He submits that in the present case the reasoning given by the court cannot be faulted and it is evident that the evidence of the said two witnesses was essential for the just decision of the case. The only stipulation is that the evidence of such person must appear to be essential to the just decision of the case. He submits that in the present case the reasoning given by the court cannot be faulted and it is evident that the evidence of the said two witnesses was essential for the just decision of the case. Learned A.P.P. for the State has also stated that the decision in the case of Keshav Choudhary (supra) is not applicable to the facts and circumstances of the present case since in that case all possible steps were taken for production of prosecution witnesses including issuance of bailable and non-bailable warrant of arrest and inspite of that the prosecution witnesses had not turned up even after a lapse of more than two years of re-opening of the case. In the present case, it is submitted that no effort was made by the court to secure attendance of the said two witnesses and the ground taken for closing of the prosecution witnesses was only that the father of the victim has compromised the case which, in the eyes of law, was impermissible. With regard to the decision in the case of Bindeshwari Prasad (supra) learned A.P.P. submits that the said case is also distinguishable on facts inasmuch as in the said case a complaint petition had initially been dismissed and later on the said order was recalled which the court had rightly held to be impermissible since it amounted to recall of a judicial order in a criminal proceedings which was impermissible under the Criminal Procedure Code. He has also distinguished the decision in the case of Sridhar Das (supra) by submitting that in the said case an application was filed by the prosecution earlier for recall of witnesses which stood rejected and thereafter a second application with the same prayer was made to the court which was not maintainable holding that the court cannot allow the prosecution to fill up a lacuna in its case. Similarly, the decision of the Court in the case of Surendra Choudhary (supra), according to him, does not apply to the facts and circumstances of the present case since in the said case witnesses had already been examined and then the court had suo motu recalled the witnesses for re-examination which, according to the court, was not justified since no reason or material justifying the same had been brought before the court before passing such order. Learned A.P.P. submits that in all the abovereferred cases, in fact, the court had admitted that the power under Section 311 is wide enough to recall any witness or call for any person to be examined as a witness at any stage of any enquiry, trial or other proceeding under the Code, if the evidence of such person appears to be essential to the just decision of the case. In the present case, the calling of the said two witnesses by the court has been justified and reasons given in the impugned order itself which, according to him, are sound and good grounds for making such an order. 6. Having considered the contentions of learned counsels for the parties, this Court is in agreement with the submissions made by learned A.P.P. for the State. The decisions relied upon by learned counsel for the petitioner are clearly distinguishable on the facts and circumstances of the present case as has been rightly explained by the learned A.P.P. The power to call or recall any person or witness by the court at any stage is clearly available under the Code itself. Further, in the present case the court has stated reasons for calling two witnesses for recording the evidence which, according to this Court, is well founded and shows that their evidence was essential for just decision in the case. 7. In view of the aforesaid, this Court does not find any merit in the present case and the same is, accordingly, dismissed. 8. Let the lower court records be returned to the court below forthwith.