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2015 DIGILAW 1290 (JHR)

Dharmendra Pandey v. State of Jharkhand

2015-10-14

AMITAV K.GUPTA

body2015
Order : This revision is directed against the order dated 18.08.2015 passed by the learned Additional Sessions Judge-II, Bokaro in S.T. No. 12 of 2007, whereby the application for recall of P.W.-8, Investigating Officer was rejected. 2. Learned counsel for the petitioner has submitted that the trial Court has failed to appreciate the fact that the Investigating Officer is a material witness. The non cross-examination of the I.O by the defence will cause prejudice to the defence. It is submitted that under Section 311 Cr.P.C the court has ample power to examine any person in attendance in court or to recall or re-examine any witness. The second part of Section 311 Cr.P.C is mandatory in nature and obligation is cast on the court to examine such witness whose evidence appears to be essential for the just decision of the case. It is submitted that Section 311 Cr.P.C is a salutary provision ensuring fair play and fair opportunity to the parties. The object and scope of Section 311 Cr.P.C is to bring on record best available evidence for the Court to ascertain the truth. That the petitioner has been facing trial for the offence under Section 304-B and certain material questions were required to be put to the Investigating Officer so as to elicit the actual state of affairs which was sought to be brought on record. It is argued that without considering the object and purpose of Section 311 Cr.P.C the court below has rejected the application on the ground that the application has been filed with an intent to linger and delay the trial. It is submitted by the learned counsel that an opportunity may be given to the petitioner to recall and cross-examine P.W.-8, Investigating Officer and the petitioner is ready to deposit the cost for recall and to re-examine the I.O within the period fixed by the Court. It is urged that the I.O has not been cross-examined in detail and denial of the opportunity will prejudice the defence which is against the spirit of Section 311 Cr.P.C. 3. Learned A.P.P has opposed and submitted that the trial Court has shown enough indulgence by recalling the Investigating Officer after great effort made by the prosecution but on that day defence had sought time for a month on the ground that the conducting counsel was busy in another Court in the matter of bail and evidence. Learned A.P.P has opposed and submitted that the trial Court has shown enough indulgence by recalling the Investigating Officer after great effort made by the prosecution but on that day defence had sought time for a month on the ground that the conducting counsel was busy in another Court in the matter of bail and evidence. That the trial Court has rightly held that the adjournments cannot be granted on the sweet will of the defence and the application was filed by the defence just to delay the disposal of the case pending since 2007. 4. Heard. On perusal of the impugned order, it is abundantly clear that the case is of the year 2007 and the Investigating Officer had appeared for his evidence on two dates prior to 26.06.2015 and was cross-examined in part and again on 26.06.2015 he was present before the Court but the defence filed a petition seeking adjournment of one month on the ground that the conducting lawyer was busy in Court of 1st Additional Session Judge in the matter of bail and evidence. 5. It is true that Section 311 Cr.P.C has been enacted to ensure fair play and fair opportunity to the parties and witnesses can be summoned and recalled and re-examined at any stage of enquiry, trial or proceeding when it appears to the court that the evidence is essential for the just decision of the case. From the narration in impugned order, it is evident that it was for the third time the Investigating Officer was recalled for cross-examination but the defence in a cavalier manner filed the application seeking adjournment for a month without any justifiable reason. The provisions of Section 311 Cr.P.C cannot be allowed to be misused in such a manner on the whims and desires of the parties, hence the Court below has rightly rejected the prayer holding that the application has been filed only to linger the disposal of the case. 6. Thus, in the attending facts and circumstances, there is no cogent reason warranting interference with the impugned order. 7. In the result, the revision is hereby dismissed.