Criminal Misc. No.M- 5671 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M- 5671 of 2009 Date of decision:4th May, 2009 Guru Dutt ......Petitioner Versus State of Punjab ......Respondent Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. B.D.Sharma, Advocate for the petitioner. Mr.B.B.S.Teji, AAG, Punjab for respondent. RAJIVE BHALLA, J. The petitioner challenges an order dated 22.01.2009, passed by learned Judicial Magistrate, Ist class Phillaur, dismissing his application filed under Section 311 of the Code of Criminal Procedure. Heard. The petitioner filed an application to recall PW-4 Madan Lal. The application was dismissed by holding that the petitioner did not cross examine Madan Lal when he deposed on 21.11.2006 and therefore, could not be recalled at this belated stage. Madan Lal's deposition, recorded by the learned Judicial Magistrate Ist Class, on 21.11.2006, ends with a note “xxxxx opportunity given-nil”. The interim order of this date however, records that PW-4 Madan Lal is bound down for 19.1.2007. This apart on 19.1.2007 the following interim order was passed:- “..... PW-4 Madan Pal who was bound down for today, has not come present. Let he be summoned through bailable warrants in the 1 Criminal Misc. No.M- 5671 of 2009 sum of Rs. 5,000/- with one surety in like amount. No other PW is present or served. Let PWs be summoned for 4.04.2007.” No explanation is forthcoming for this apparent contradiction. Thereafter, the case was adjourned to 4.4.2007, 14.5.2007, 27.9.2007, 24.4.2008 and 7.07.2008 but no PW was present on these dates. On 7.7.2008, the trial Court closed prosecution evidence. A perusal of these orders leaves no manner of doubt that the petitioner/accused was not granted an opportunity to cross examine PW-4 Madan Lal. If the note “cross examination- nil” appearing beneath the statement of PW-4 was correct the trial Court would not have recorded an interim order summoning him for the next date. The words “cross examination-”nil” appear to be a typographical error which should have been rectified. Instead, the trial Court chose to dismiss the application on the ground that prosecution evidence has concluded and the statement under Section 313 of the Code has also been recorded. Procedural impediments, like the stage of a case etc, would not bar a court from exercising its powers under Section 311 of the Code of Criminal Procedure, once it forms an opinion that it is essential to examine, recall or re-examine any person for a just decision of the case. Section 311 opens with the words “any Court may” and is thereafter followed by the words-----“at any stage of any enquiry, trial or other proceedings---” leaving no ambiguity that the power under Section 311 can be exercised at any stage of an enquiry, trial or other proceedings. Section 311 confers a plenary power upon a Court to summon any person as a witness, recall or re-examine any person already examined, if his evidence appears to it to be essential for the 2 Criminal Misc. No.M- 5671 of 2009 just decision of the case. The key to the exercise of the power, under Section 311 of the Code of Criminal Procedure, is the courts perception that the deposition of a particular person is essential for a just decision of the case. In my considered opinion the trial Court committed an error in refusing to exercise its powers under Section 311 of the Code of Criminal Procedure. In view of what has been stated here in above, the revision petition is allowed and the order dated 22.01.2009 is set aside. The application filed under Section 311 of the Code of Criminal Procedure is allowed and the the trial court is directed to recall PW-4, Madan Lal for cross examination by the petitioner. Parties are directed to appear before the trial court on 29.05.2009. [RAJIVE BHALLA] JUDGE 4th May, 2009 SKaushik 3