CRM No. M 6703 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 6703 of 2011 Date of decision: 05.03.2011 Baldev Singh and another ........ Petitioner Versus State of Punjab and another .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Ashok Giri, Advocate for the petitioner -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 Cr.P.C. for setting aside the impugned order dated 24.02.2011 (P6), whereby, application of the accused/petitioners for recalling PW1-prosecutrix for further cross examination has been rejected by the learned trial Court. Facts, in short, are that FIR No. 129 dated 06.06.2010 under Section 376, 506, 34 IPC, P S Shahkot, District Jalandhar was registered against the present petitioners on the basis of statement made by prosecutrix. Thereafter, the prosecutrix was examined and cross examined as PW1 on 10.09.2011. After that, the mother of the prosecutrix, namely Bhupinder Kaur was examined as defence witness (DW1). In her statement, Bhupinder Kaur, mother of the prosecutrix, stated that her CRM No. M 6703 of 2011 2 daughter had given the statement at the instance of one Kulwinder Singh. After the evidence of the mother of the prosecutrix in the Court, the petitioners/accused moved an application for recalling the prosecutrix (PW1) for further cross examination on the ground that the mother of the prosecutrix has disclosed certain new fact which was not in the knowledge of the accused/petitioners and therefore, the prosecutrix be recalled for further examination. The said application was dismissed vide order dated 24.02.2011 passed by the Sessions Judge, Jalandhar. Hence, the present petition has been filed under Section 482 Cr.P.C challenging the aforesaid order dated 24.02.2011, dismissing the application of the accused petitioners. Heard. Section 311 of the Code of Criminal Procedure 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 its 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.” A perusal of the Section 311 Cr.P.C, referred to above, gives vast powers to the Court to summon any person as a witness or recall or CRM No. M 6703 of 2011 3 examine any witness if already examined at any stage of inquiry, trial or other proceedings. Thus, it becomes even all the more necessary to exercise the said power judicially. Hon'ble the Supreme Court in the case of U T Dadra and Haveli and another v. Fatehsinh Mohansinh Chauhan reported as 2006(4) RCR (Criminal) 113 held in no uncertain terms that recalling of a witness or re-examine a witness already examined in order to enable the Court to arrive at a just decision of the case will not amount to “filling in a lacuna in prosecution case” but added a very serious word of caution and laid down following guidelines in para 12 as under:- “12. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the Court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in prosecution case" unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused resulting in miscarriage of CRM No. M 6703 of 2011 4 justice.” In the aforesaid judgment as well as in various other judgments on the subject, one of the requirements while allowing the recalling of the witness is that the Court must make sure that the same does not result in miscarriage of justice. Learned counsel for the petitioners has relied on the judgment rendered by our own High Court in the case of Baljit and others v. State of Haryana and another reported as 2009(2) RCR (Criminal) 178, wherein, it is held that when the accused moves an application under Section 311 of Cr.P.C. for recalling the witness, the same should be allowed if accused wants to bring to the notice of the Court the matter which can be said to be relevant for the purpose of deciding the case. The caution and guidelines provided in the judgment rendered by Hon'ble the Supreme Court in the case of UT of Dadra and Haveli (supra) have to be tested in the facts and circumstances of the case. In the present case, the prosecutrix has led her evidence. She was examined at length. She has duly supported the case of the prosecution. The said statement was recorded on 10.09.2011. Surprisingly, the mother of the prosecutrix has been produced as defence witness. The mother of the prosecutrix, in her evidence, stated that the statement was made by her daughter at the behest of one Kulwinder Singh. It is also stated by the mother of the prosecutrix that she was working with the said Kulwinder Singh since for the last 15 years. Thereafter, accused/petitioners moved an application under Section 311 Cr.P.C. to recall the prosecutrix so as to confront her with the statement made by her mother Bhupinder Kaur. CRM No. M 6703 of 2011 5 In this view of the matter, this Court does feel it appropriate to allow the accused/petitioners to recall the prosecutrix for further examination as (a) DW1 may be the mother of the prosecutrix but she has been examined as defence witness and as such, the accused/petitioners cannot say that they were not aware as to what the defence witness was going to state; (b) The mother of the prosecutrix has been produced by the accused themselves. After recording of her statement, they want to recall the prosecutrix for no other reasons but to fill the lacuna in prosecution case; c) In the present case, the prosecutrix is a victim. She has duly supported the prosecution version. The accused/petitioners had enough opportunity to ask the prosecutrix as to whether she was making this statement at the behest of some one or not. As such, recalling the prosecutrix would cause prejudice to the victim and will therefore, not be in the interest of justice; and d) Moreover, the recalling of the prosecutrix in order to make her confront with the statement of a defence witness is neither necessary for the adjudication of the case nor proper and will be highly irregular. In view of the above, though Section 311 Cr.P.C leaves very wide discretion with the Court to summon or to examine any witness, yet the said power is required to be exercised with caution and only if the exigencies of justice requires. In the present case, as discussed above, the recalling of the prosecutrix for the purpose as suggested i.e. to confront her CRM No. M 6703 of 2011 6 with the statement of a defence witness will not be in the interest of justice and nor the same is required for adjudication of the case. In view of the above, there is no ground which may enable this Court to interfere in the well reasoned order dated 24.02.2011 passed by the Sessions Judge, Jalandhar denying the accused petitioners to recall the prosecutrix for re-examination. Resultantly, the present petition is dismissed. (Nirmaljit Kaur) Judge 05.03.2011 mohan