CRR No.1059 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** CRR No.1059 of 2010 DATE OF DECISION 19.10.2011 Swaran Singh @ Bittu ...Petitioner Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. Jagjit Singh, Advocate, for the petitioner. Mr. J.S.Rattu, Deputy Advocate General, Haryana for the State. AUGUSTINE GEORGE MASIH, J (Oral) This revision petition has been preferred against the order dated 16.03.2010 passed by the Learned Additional Sessions Judge, Sirsa vide which an application filed by the prosecution for recalling Kala Singh prosecution witness for further examination, was allowed. Counsel for the petitioner on facts submits that Kala Singh appeared as a prosecution witness initially on 27.04.2006 and deposed in Court. He was cross-examined by the defence counsel and his evidence stood concluded. On 16.03.2010, the prosecution witness Kala Singh was again examined as PW-16 for the reason that his earlier statement was recorded in the absence of accused Naib Singh. During this deposition, Kala Singh did not support the prosecution version and on the request made by the Public Prosecutor, he had been declared hostile and was cross-examined by the Public Prosecutor. Opportunity was given to the counsel for the defence to cross-examine him but no questions were put thus, his evidence stood concluded. Same day, an application was moved by the Public Prosecutor under Section 311 Cr.P.C. for recalling PW16-Kala Singh for further examination on the ground that earlier on 27.04.2006 the said witness was examined and had supported the CRR No.1059 of 2010 -2- prosecution case but on 16.03.2010 he had resiled from his previous statement. Some important questions were inadvertently left out by the Public Prosecutor relating to the deposition, which he had made on 27.04.2006. Notice of this application was given to the counsel for the accused and the accused, who were present in the Court. Reply on behalf of accused Manjit Singh and Swaran Singh (Petitioner herein) was filed in the Court while Naib Singh had separately made statement that he does not want to file his reply to the application. On consideration of the application of the prosecution Learned Additional Sessions Judge, Sirsa vide order dated 16.03.2010 accepted the application and directed summoning of PW Kala Singh for 08.04.2010. It is this order which is under challenge in the present revision petition. It is the contention of the counsel for the petitioner that the petitioner Swaran Singh @ Bittu is one of the accused and his right would be prejudiced by allowing the present application at a belated stage when already two times the witness had appeared before the trial Court and has also been cross-examined. The deposition having been completed, the application, at this stage, filed by the prosecution cannot be permitted to be allowed as it would be against the provisions of Section 311 Cr.P.C. His further contention is that the Court should have exercised its discretion under Section 311 Cr.P.C. judiciously which is missing in the present order impugned herein. Reliance has been placed on the judgment of this Court in the case Hari Singh vs. State of Haryana and another 2002(2) RCC 155. On the other hand, counsel for the State has submitted that while exercising powers under Section 311 Cr.P.C, the requirement is the satisfaction of the Court that the evidence appears to be essential for the just justification of the case which has been rightly considered by the trial CRR No.1059 of 2010 -3- Court and therefore, the order is in accordance with law. I have heard learned counsel for the parties and gone through the record of the case carefully. The facts as stated above are not in dispute that earlier Kala Singh had appeared on 27.04.2006 as PW-5 when he had supported the case of the prosecution and had withstood the cross-examination of the defence. In the cross-examination he had stated that whatever he had deposed in Court was recorded under Section 161 Cr.P.C. by the police. This is apparent from his statement, which has been placed on the record as Annexure P-4. It would not be out of way to mention here that this statement was recorded in the absence of accused Naib Singh. After the arrest of Naib Singh, Kala Singh appeared as PW16 on 16.03.2010 when he did not support the case of the prosecution and on the request made by the Public Prosecutor he was declared hostile and accordingly he was cross-examined by the Public Prosecutor. Opportunity was given to cross-examine him by the defence but no questions were put to him. After PW Kala Singh had left the Court premises an application for recalling this witness for further cross-examination was moved under Section 311 Cr.P.C. by the Public Prosecutor on 16.03.2010 itself, on the ground that some important questions were left out which were to be put to him with reference to his earlier deposition dated 27.04.2006. Appropriate opportunity was given to the accused who did contest the said application but the same was allowed by the trial Court vide order dated 16.03.2010. The contention of the counsel for the petitioner that the witness has already been examined twice and his deposition have been concluded after his cross-examination he cannot be now called for re-examination for further examination as the right of the accused would be gravely CRR No.1059 of 2010 -4- prejudiced cannot be accepted for the simple reason that the earlier deposition by the Kala Singh as PW-5 on 27.04.2006 was in the absence of Naib Singh accused, who was subsequently arrested which necessitated a fresh trial. It is at this stage that Kala Singh appeared as PW16 on 16.03.2010 and resiled from his earlier statement and was declared as hostile witness and thereafter subjected to questioning by the Public Prosecutor. As is apparent from the record, the application was moved under Section 311 on the same day without any delay but only after the witness Kala Singh had left the Court premises. A perusal of Section 311 Cr.P.C. would clearly show that it is the satisfaction of the Court to see and to summon and examine or recall or re-examine any person if his evidence is essential for just decision of the case. In the present case, first deposition of Kala Singh as PW-5 in the absence of one of the accused and cross-examination, does not amount to second examination when he appeared as PW-16 after arrest of Naib Singh. The justification and the ground submitted by the Public Prosecutor for recalling this witness appear to be quite justified in the light of the deposition dated 27.04.2006 wherein he had supported the prosecution case in full and had withstood the cross-examination by the defence. The contention of the counsel for the petitioner that the trial Court has not exercised its jurisdiction and discretion under Section 311 Cr.P.C. judiciously is not sustainable in the light of the reasons assigned by the trial Court for allowing such an application. I am in full agreement with the reasons assigned by the trial Court. The present petition being without any merit, deserves to be dismissed. Ordered accordingly. 19.10.2011 (AUGUSTINE GEORGE MASIH) adhikari JUDGE