Crl. Misc. No.M-415 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-415 of 2011 Date of Decision: 17.01.2011 Dushyant Kumar s/o Uttam Chand ....Petitioner Versus State of Haryana and others ....Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Ashwani Talwar, Advocate for the petitioner. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 of Cr.P.C for setting aside the order dated 18.11.2010 passed by Judicial Magistrate Ist Class, Hisar, whereby, the application moved by the counsel for the complainant for recalling PW-14 under Section 311 Cr.P.C has been allowed. It was contended that Judicial Magistrate Ist Class, Hisar has gravely erred on facts, as well as, in law while passing the impugned order dated 18.11.2010. PW 14 Sanjay Tyagi, Sub Registrar-III, New Delhi was allowed to be recalled, in spite of the fact, that he had already been examined by the prosecution and, thereafter, he was cross-examined also. His evidence had been completed on 15.10.2010. Heard. The facts, in short, are that one Sanjay Kumar, the then Sub Registrar-III, New Delhi was examined as PW-14 on 15.10.2010 by Judicial Magistrate Ist Class, Hisar. He was declared hostile. The APP requested Crl. Misc. No.M-415 of 2011 2 for cross-examination of this witness. Thereafter, in stead of the prosecution, the defence cross-examined him. On 29.12.2010, the complainant-Chander Parkash moved an application under Section 311 Cr.P.C for recalling PW-14. The said application was, accordingly, allowed. The contention that, in case, the witness was to be cross- examined by the prosecution after declaring him hostile, the same was required to be done prior to giving opportunity to the accused-respondents for cross examination of the witness, cannot be sustained in the facts of the present case. The witness was declared hostile on 15.10.2010 itself. The prayer to cross examine was made by the APP on the same day. The defence cross-examined him on the same day. Thus, the request to cross- examine the hostile witness on 15.10.2010 itself is borne out from the order P-3/A attached with the petition. The fact that the request for cross examining the witness by the prosecution immediately after the witness was declared hostile could not materialize is evident from the impugned order itself, which reads as under :- “ The request of learned counsel for the complainant was kept pending on the date of examination of PW14 Sanjay Kumar because both the counsel started taking at a high volume and it was not understood by the court what their submissions were because they started fighting among themselves leveling allegations against each other when the witness resiled from his previous statement. When a witness resiles from his previous statement, it is a routine to declare such witness hostile and a request for cross-examining him if made by APP is allowed as a matter of practice here. When PW14 Sanjay Tyagi resiles from his previous statement, M.R. Mehta, Advocate requested for declaring him as hostile and for his cross-examination, an opportunity was given to Sh. Anuj Gupta to cross-examine this witness and his request was kept pending as witness is resiling from his Crl. Misc. No.M-415 of 2011 3 previous statement. Right accrues in favour of the APP and complainant's counsel to examine this witness after declaring him hostile. This right cannot be taken away just because the opportunity was given to Sh. Anuj Gupta, Advocate to cross-examine PW14 Sanjay Kumar because the request of the counsel as well as APP was kept pending.” Moreover, It is a settled proposition of law that a revision against interlocutory order under the garb of Section 482 Cr.P.C cannot be entertained, unless and until, there is a miscarriage of justice and the petition under Section 482 Cr.P.C should be resorted to only wherein interference becomes absolutely necessary. The order allowing the application under Section 311 of the Cr.P.C in the present case is an interlocutory order. No revision is maintainable. Accordingly, the present petition is nothing but a second revision under the garb of Section 482 Cr.P.C. No such injustice or misuse of the process of Court is pointed out which may enable this Court to exercise its inherent power under Section 482 of the Cr.P.C. Moreover, from the perusal of Section 311 of the Cr.P.C., it is evident that the Court has the power to recall or re-examine any witness. The requirement is that such evidence should be essential for just decision of the case. It is a common experience that defence counsel raise objection when the Court exercise power under Section 311 of the Cr.P.C by saying that the Court could not fill the lacuna in the prosecution case. The interest of justice, therefore, requires that the prosecution should be allowed to cross-examine the said witness in order to find out the truth and for proper and just adjudication of the case. Hon'ble the Supreme Court in the case of U.T. of Dadra & Haveli vs. Fatehsinh Mohansinh Chauhan reported as 2006(4) RCR (Criminal) 113, while discussing the entire law on the subject held as Crl. Misc. No.M-415 of 2011 4 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 justice.” Applying the test in the present case, it is evident that no injustice has been caused. In fact, the witness having been declared hostile, it is a right of the prosecution to cross examine him. The same cannot be rejected just because the defence had cross examined him meanwhile. The fact as to how the defence was allowed to cross examine him instead of the prosecution, whose request was kept pending is evident from the operative part of the impugned order and which has been reproduced above. As such, the present petition is dismissed being devoid of merit. (NIRMALJIT KAUR) 17.01.2011 JUDGE gurpreet