Criminal Revision No. 1102 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1102 of 2008 (O&M) Date of decision: 17.8.2009 State of Punjab .. Petitioner v. Raj Kumar .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. A. S. Brar, Senior Deputy Advocate General, Punjab for the petitioner. Mr. R. S. Bajaj, Advocate for the respondent. ... Rajesh Bindal J. The State has approached this Court challenging the order dated 10.12.2007, passed by Special Judge, Faridkot, whereby the application filed by the prosecution under Section 311 Cr.P.C. for summoning of the complainant- Harnek Singh, Junior Engineer, as witness, was dismissed. Learned counsel for the petitioner submitted that there are serious allegations against the respondent in the present case, who was being tried on the charges of corruption. In fact, the complaint was filed by Harnek Singh, Junior Engineer. Immediately after filing of challan and framing of charge against the respondent-accused, the complainant went abroad on 8.4.2003 on long leave and returned back on 7.10.2007 and joined his duty on 8.10.2007. On account of his leave, he could not come to the court to get his statement recorded as complainant. Under the circumstances, the evidence of the prosecution was closed by order on 17.4.2007. While the case was still pending, when Harnek Singh-complainant came back on 8.10.2007, immediately application under Section 311 Cr.P.C. was filed for summoning him as a witness. The same was dismissed by the learned court below with the observation that the earlier order passed by the court on 17.4.2007 closing evidence of the prosecution cannot be re-called/reviewed. Relying upon a judgment of this Court in Jai Singh v. Soma @ Som Nath and others, 2006 (4) RCR (Criminal) 547, it was submitted that the view expressed by the learned court below was not tenable as any application filed under Section 311 Cr. P.C. does not amount to review of the earlier order passed. He further Criminal Revision No. 1102 of 2008 [2] submitted that in case opportunity is granted to the prosecution, the entire evidence will be completed within two months from the date already fixed, i.e., 20.8.2009 and the trial will conclude expeditiously. On the other hand, learned counsel for the respondent submitted that the FIR in question was registered on 1.1.2003. After filing of the challan, number of opportunities were granted to the prosecution to lead the evidence and on account of their failure, the court below did not have any option but to close the evidence. Considering the fact that the respondent has already suffered for more than 6-1/2 years, no opportunity should be granted to the petitioner for re-calling the prosecution witness or lead any evidence at this stage as the same will certainly prejudice the case of the respondent. Heard learned counsel for the parties and perused the record. As far as the facts of the case are concerned, the parties are not in dispute that in spite of number of opportunities initially granted to the prosecution, no evidence was led. The case set up by the prosecution is that the evidence could not be led for the reason that from 8.4.2003 to 7.10.2007, the complainant in the FIR, namely, Harnek Singh, Junior Engineer was on ex-India leave. It was during this period only that opportunities were granted by the court and the evidence was closed. Immediately after his returning back, application under Section 311 Cr.P.C. was moved for summoning Harnek Singh as prosecution witness. The same was dismissed with the observation that the court cannot review or re-call its earlier order. Such a view is not tenable in view of the judgment of this Court in Jai Singh's case (supra), where it was opined as under: “The trial court, in my considered opinion, erred in jurisdiction and in law, while dismissing the application. It erroneously construed that acceptance of an application, filed under Section 311 of the Cr.P.C., would require it to review its order, dated 16.8.2002. This inference, in my considered opinion, is unwarranted and unsustainable in law. Powers, conferred upon a Court under Section 311 of the Cr. P.C., are in no manner circumscribed by an order directing closure of evidence. The expressions “at any stage of any inquiry, trial or other proceedings under the Cr. P.C.” appearing in Section 311 of the Cr. P. C. clearly suggest that this power can be invoked by a court at any stage of any inquiry, trial or other proceedings under the Cr. P.C., subject, however, to an over-riding principle that the evidence, sought to be adduced, should appear to the court to be essential for a just decision of the case, the paramount consideration being “just decision Criminal Revision No. 1102 of 2008 [3] of a case”. To, therefore, construe an order directing closure of evidence as a bar to the exercise of powers, under Section 311 of the Cr. P.C. to be an application for review of the order closing evidence, in my considered opinion, would be unwarranted. Such an interpretation to the provisions of 'section 311 of the Cr. P.C., does not flow from the language used therein. The learned trial court, therefore, committed an error of jurisdiction and law, while dismissing the application, filed by the petitioner. Consequently, the present petition is allowed and the order dated 23.11.2002 is set aside.” In State of Rajasthan v. Ikbal Hussen, (2004) 12 SCC 499, considering the issue of right to speedy trial in terms of Article 21 of the Constitution of India, Hon'ble the Supreme Court observed that cases of corruption of public servants is not protected, as these are serious in nature. Merely because of delay in conclusion of trial, an accused cannot be acquitted. As the cause shown by the prosecution for non-appearance of the prosecution witness and conclusion of the evidence is found to be sufficient, while setting aside the impugned order, the prosecution is permitted to call Harnek Singh, Junior Engineer, Grade-I, as prosecution witness and conclude its evidence within two months from the date already fixed, i.e., 20.8.2009. It is made clear that no further opportunity shall be granted to the prosecution to lead any further evidence. Thereafter, in case any evidence is required to be led by the defence, the same shall also be concluded expeditiously and the court shall make endeavour to conclude the trial by the end of year 2009. The petition stands disposed of. (Rajesh Bindal) Judge 17.8.2009 mk