Patna High Court
Nand Kishore Singh And Ors. vs State Of Bihar on 18 July, 1995
Equivalent citations: 1995(2)BLJR1213
JUDGMENT S.K. Chattopadhayaya, J.
1. A very interesting question has been raised in this case to Whether after an accused has been examined under Section 313 of the Code of Criminal Procedure (hereinafter referred to as the Code), the Trial Court can recall a witness for examination and cross-examination in exercising of its power under Section 311 of the Code.
2. The facts of the case, in short, is that the charge-sheet against the petitioners was submitted under Sections 342, 384 and 506 of the Indian Penal Code and cognizance was taken on 14.12.1985. On 25.1.1991 the informant Shri S.N. Singh was examined and was discharged. On 14.9.1992 an application was filed on behalf of the petitioners to recall Sri Singh for further cross-examination. Prayer was allowed and by order dated 19.9.1992 the Court below directed the prosecution to produce Sri Singh in the Court for his further cross-examination. It appears that as Sri Singh was not produced by the prosecution for further cross-examination his evidence was expunged on 28.6.1994. The prosecution closed its case and on 26.7.1994 the statement of the petitioners under Section 313 of the Code were recorded. On 24.8.1994 the prosecution filed a petitioner praying to allow the prosecution to produce Sri Singh for further cross-examination. A rejoinder to the said petition was filed by the petitioners but by the impugned order dated 19.4.1995 the Court below has allowed the prayer of the prosecution and directed the prosecution to produce Sri Singh for further cross-examination. This order dated 19.4.1995 is impugned in this application.
3. Mr. M.M. Banerjee, learned Counsel appearing on behalf of the petitioners, submits that the order of the Court below is vitiated in law on two accounts; firstly the Court below having expunged the evidence of Sri Singh by order dated 28.6.1994 could not have recalled/modified the said order by passing the impugned order and secondly it is submitted that power under Section 311 of the Code could be exercised at any time but definitely not after the accused is examined under Section 313 of the Code. It is done then, it is contended, that the prosecution may fill up the lacuna in the defence case, which is not permissible in law.
4. Mr. Sumir Prasad, learned A.P.P. on the other hand has contended that the power of the Court under Section 311 of the Code is so wide that even before delivering of judgment the Court can exercise its power. He further submits that the power under Section 311 of the Code is not restricted by provision as contained in Section 313 of the Code.
5. Section 311 of the Code reads as follows:
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 as 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.
From a bare perusal of the provision aforesaid it is clear that as the section stands, there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bonafide of the opinion that for the just decision of the case, the step must be taken. This section is intended to be wide, in my opinion, as the repeated use of word "any" throughout its length indicates. This section consists of two parts; first part which is discritionery enables a Court at any stage (a) to summon any one as a witness; or (b) to examine any person present in Court; or (c) to recall and re-examine any witness. The second part, which is mandatory in nature compels the Court to take any of the above steps if the new evidence appears to be essential to the just decision of the case.
Sub-sections 1(a) and (b) of Section 313 of the Code contemplates the stages when an accused is examined. The examination under Sub-section 1(a) can be made at any stage, but as the question is only for the purpose of explaining any evidence appearing against the accused, it follows that the Court cannot question before any evidence if recorded against him which requires explanation. The words "after prosecution witnesses have been examined" mean in my opinion, when the prosecution has finished calling evidence and do not include their cross-examination or re-examination. The argument of Mr. Banerjee is that when the law mandates that the accused has to be examined under Section 313 of the Code after witnesses tor the prosecution have been examined naturally means that after completion of the evidence adduced on behalf of the prosecution, the accused is to be examined. So the Court below, it is contended, could not have passed any order under Section 311 of the Code recalling the informant whose deposition in chief was previously expunged from the records.
7. In the case of Triloki Nath Singh v. Basudev Narain Singh and Anr. reported in 1991 Vol(2) PLJR 95, this Court elaborately considered the scope of Section 311 of the Code and has held that Section gives power to the Court to examine any witness even already examined and Section confer power upon the Court to recall the witness even for the purpose of further examination. Similarly while considering the scope of Section 540 of the Code of Criminal Procedure, 1898 the Supreme Court in the case of Jamatraj Kewalji Govani v. State of Maharashtra, , has, inter alia, held:
As the Section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached provided the Court is bona-fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to do something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly.
Under the aforesaid premises if the impugned order is scrutinised it is clear that the trial Court allowed the petition filed by the prosecution for examination in order to do justice.
8. From the order impugned it appears that on 6.4.1993 summons were issued and on 4.10.1993 bailable warrant of arrest was issued against him. But as, inspite of the aforesaid steps being taken, Sri S.N. Singh did not appear on 1.3.1994 non-bailable warrant was also issued. On 28.5.1994 the learned A.P.P. filed a petition stating that Sri S.N. Singh having retired was living in village Hulia, police station Bakhtiyarpur, district Patna. The trial Court found that process issued earlier were not sent on the said address. The Court further found that Sri S.N. Singh already retired from Government Service and later on after closure of the prosecution case he never turned up for his further cross-examination.
9. It is true that after his examination when Sri Singh was not produced for cross-examination, his entire evidence was expunged from the records of the case but the circumstances under which the petition filed on behalf of the prosecution for such recalling have to be considered. The impugned order shows that after his retirement Sri Singh was residing at village Hulia in the district of Patna and processes issued earlier Were not sent to this address. When is where about could be known to the prosecution, the A.P.P. filed the said application. Under these backdrops, in my opinion, if the Court below has allowed the petition filed by the prosecution for further cross-examination of Sri S.N. Singh for doing justice in the case, this Court will not interfere with the aforesaid order. It is well-settled that acquittal or discharge without following such measure will be a negation of justice. The petitioners can be again examined under Section 313 of the Code because the object of Section 313 is that the accused may be given an opportunity of explaining each and every circumstances appeared against him.
10. Having considered the facts and circumstances of the case, in my opinion, the impugned order cannot be interfered with in exercise of my revisional jurisdiction.
11. In the result, I find no merit in this application. It is accordingly, dismissed. No order as to costs.
12. Let a copy of this judgment be sent down to the Court below forthwith.