IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M- 20631 of 2009 DATE OF DECISION : July 30, 2009 Ramesh ...Petitioner Vs. State of Haryana ...Respondent CORAM: HON’BLE MR.JUSTICE AUGUSTINE GEORGE MASIH Present : Mr.Lekh Raj Sharma, Advocate for the petitioner AUGUSTINE GEORGE MASIH,J. The present petition has been preferred by the petitioner praying for quashing of the order dated 08.05.2009 passed by the Learned Additional District and Sessions Judge, Jhajjar (Annexure P-2), whereby the application preferred by the petitioner under Section 311 of the Code of Criminal Procedure. for recalling the witness PW 14, ASI Dharambir Singh (CIA Staff) Ballabgarh for re- examination and cross-examination. Counsel for the petitioner contends that the examination-in-chief and cross-examination in F.I.R. No. 470 dated 15.10.2002 of Shri Dharambir Singh was on 03.03.2006. The said witness did not name the petitioner in his statement before the Court but when he went through the statement of the witness. It so transpired that his name found mention therein although there was some confusion with regard to the name of the petitioner wherein Ram Niwas was initially mentioned and then again the witness has stated the name of Ramesh. He submits that an application dated 04.03.2006 Criminal Misc. No.M- 20631 of 2009 -2- was there and then filed in the Court for recall of the above said witness so that he could be re-examined for clarifying the position with regard to the petitioner having been named by him as a person identified out of the mob which had committed the offence. He submits that there was no delay on the part of the petitioner in preferring his application under Section 311 of the Code of Criminal Prcedure and their intention was not for delaying the matter at all but was with intention that interest of justice should be duly served so that the position could be clarified with regard to naming of the petitioner in the examination-in-chief by the witness PW 14. He further submitted that under a bonafide mistake that his name has not been mentioned in the examination-in-chief, no cross examination of the witness qua his identity was done by the counsel for the petitioner and the witness himself has admitted this fact in private that he had not named the petitioner in his examination-in-chief. I have heard counsel for the petitioner and have gone through the record of the case. Perusal of the statement of ASI Dharambir Singh PW 14 which has been placed on record as Annexure P-3 would clearly show that he had stated that he identified Om Parkash Ex-Chairman Kablana, Basant son of Dalip, Ramniwas again said Ramesh, Rakesh, Hansraj, Shishu Pal, Manoj @ Manohri, Kesav Dass and Vijaypal belonging to Gurukul Jhajjar as persons among the mob, whose names were later identified. He has further stated that all these persons are present in the Court today. That being the position with regard to the Criminal Misc. No.M- 20631 of 2009 -3- statement of the witness. There was no doubt with regard to the naming of the petitioner by the witness Dharambir Singh PW 14. The assertion of the counsel for the petitioner that there was some misunderstanding about the name of the petitioner having been taken by the witness, therefore, cannot be accepted. It appears that when the counsel for the petitioner realized that on the identification of the petitioner by the witness no cross-examination has been done, the petitioner has preferred the application dated 04.03.2006 to fill in the lacuna, as the statement of the witness has gone unchallenged in his cross examination. I have gone through the order passed by learned Additional Sessions Judge, Jhajjar, wherein, it has been recorded that apart from Dharambir Singh PW 14, Rajbir PW 6 and H.C.Abhey Singh PW 8 have also identified the petitioner as one of the person present in the mob. Counsel for the petitioner has relied upon the judgment of this Court Baljit Singh and other Versus State of Haryana and another 2009(2) R.C.R. (Criminal ) 178 to contend that the application for recall of witness can be filed at any time by the accused and that it is the discretion of the Court to allow the same at any stage of the case, whenever it considered the evidence essential. This contention of the counsel for the petitioner cannot be faulted with as the power to recall or re-examine any person already examined has clearly been provided to the Court under Section 311 of Code of Criminal Procedure. The only requirement for doing so is that recall or re-examination of any such person can be ordered by the Court if his evidence appears to be essential to the just decision of the case. That Criminal Misc. No.M- 20631 of 2009 -4- power and discretion is vested with the Court and it is for the Court to record its satisfaction with regard to the fact that the evidence is essential for the decision of the case. In the present case while dismissing application moved under Section 311 Cr.P.C. by the petitioner, the Court has come to the conclusion that the recall and re-rexamination of the witness i.e PW 14 is not essential for the just decision of the case. Further it has left open the effect of non recalling of this witness at the time of consideration of the merits of the case. The provision as has been provided under Section 311 of the Code of Criminal Procedure cannot be used as a tool to fill in the lacuna which has been left out crept in. The loopholes cannot be stitched by resort to this provision. The present case is not of the nature which would fall within their category of cases in which exercise of powers under Section 311 of the Code of Criminal Procedure for recalling the witness should be allowed. The effort on the part of the petitioner to fill in the lacuna, which has been left out, cannot be permitted at this stage. The impugned order dated 08.05.2009 passed by the trial Court is in accordance with law. Finding no merit of the present petition, the same stands dismissed. (AUGUSTINE GEORGE MASIH) July 30, 2009 Judge ps