Jammu & Kashmir High Court
Union Territory Of J&K vs ) Arjun Veer Rana on 11 January, 2024
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM (M) No.3/2024
CrlM No.5/2024
Union Territory of J&K
Through Sub-Divisional Police Officer (East)
Jammu.
...Petitioner(s)
Through: Mr. Amit Gupta, AAG
V/s
1) Arjun Veer Rana
S/o Janak Singh Rana
R/o Greater Kialash, Jammu
2) Vishal Singh
S/o Karan Singh
R/o Kachi Chawni, Jammu
...Respondent(s)
Through: Mr. Jasbir Singh Jasrotia, Advocate
Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
ORDER
11.01.2024
1. The instant writ petition has been filed on behalf of the petitioner under section 482 Cr.P.C seeking quashment of the order dated 06.10.2023 passed by the Learned Principal District & Sessions Judge, Jammu in case File No. 37/Sessions titled State v/s Arjunveer Rana & another in case FIR No.186 of 2013 of P/S Bahu-Fort, Jammu under section 307/325/201/34 of RPC and 4/25 Arms Act., whereby the petitioner's application under section 540 of Cr. P.C 1989 Svt. has been dismissed.
CRM (M) 3/2024 Page 2 of 6
2. With a view to appreciate the controversy involved in the instant petition, it would be appropriate to give factual background of the instant case.
3. The instant matter has arisen out of a case titled "State v/s Arjunveer Rana and anr" whereby a case under section 307 of the Ranbir Penal Code has been arised out of FIR No.186 of 2013 registered with Police Station Bahu Fort, Jammu, against the respondents. The said case is pending for trial before the court of Principal District & Sessions Judge, Jammu.
4. Ld. Counsel for the petitioner submits that the prosecution had filed an application under section 540 Cr. P.C Svt. 1989 for calling and re- examining of Prosecution Witness namely Pranav Khajuria but the said application was dismissed by the Trial court vide order dated 6.10.2023.
5. It is further submitted that PW Pranav Khajuria had received serious stab injuries at the time of the occurrence and during the course of trial proceedings, the statement of the said witness was partly recorded on 28.01.2016. Thereafter, the same was further deferred for 11.07.2016. However, on 11.07.2016 also, the statement could not be completed and the same was again deferred.
6. It is further submitted by the learned counsel for the petitioner that on 03.12.2016, the said witness appeared in the court and was subjected to cross examination by the defence counsel. The grievance of the petitioner in the instant petition is that in absence of his complete examination in chief, the said witness could not be cross examined. Ld. Counsel submits that recording of complete evidence of the said witness is essential for the just decision of the case. It is submitted by CRM (M) 3/2024 Page 3 of 6 the learned counsel for the parties that the said witness is required to be recalled and re-examined, failing which serious prejudice shall be caused to the prosecution.
7. It is further contended that an application under section 540 of J&K Cr.
P.C was moved by the Special Public Prosecutor for re-examining the PW Pranav Khajuria, but the same was dismissed. The case of the prosecution before the trial court was that once, the examination in chief has not been concluded, there was no occasion for cross examining the said witness and this fact was discovered on 14.08.2023 during the course of final arguments. It is submitted that the moment it had come to the knowledge of prosecution that the illegality has been committed, the instant application was moved, however, the trial court without looking into the facts and circumstances of the case, has dismissed the application.
8. The learned counsel further submits that the court below failed to appreciate the order dated 07.07.2016, which bear the testimony that the examination in chief was deferred and also failed to appreciate that the witness appeared on 3.12.2016 and was required to be examined in chief and after mentioning his statement, the cross examination could have been allowed.
9. Heard learned counsel for the petitioner at length.
10. Mr. Jasbir Singh Jasrotia, Advocate on behalf of the respondents has strongly opposed the prayer of the petitioner, however, submits that he has no objection, in case the matter is remanded back to the court below i.e Principal District & Sessions Judge, Jammu and in case, if only one opportunity is granted to the prosecution to record the CRM (M) 3/2024 Page 4 of 6 complete statement of the P/W Pranav Khajuria by way of examination in chief for just decision of the case as according to him much time has already been wasted in the trial.
11. I am fortified by the law laid down by the Hon'ble Apex Court in Raja Ram Prasad v. State of Bihar and another (2013) 14 Supreme Court Cases 461 where it is held that:
"Again in an unreported decision rendered by this Court dated 08.05.2013 in Natasha Singh vs. CBI (State) - Criminal Appeal No.709 of 2013, where one of us was a party, various other decisions of this Court were referred to and the position has been stated as under in paragraphs 14 and 15:
"14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party.
The power conferred under Section 311 Cr.P.C. must, therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection"
12. I am also fortified by the judgment of the Hon'ble Apex Court passed in case titled Satbir Singh vs. State of Haryana and others. The relevant paras are reproduced hereunder for ready reference:
"In Manju Devi v State of Rajasthan, (2019) 6 SCC 203, this Court emphasized that a discretionary power like Section 311, CRM (M) 3/2024 Page 5 of 6 CrPC is to enable the Court to keep the record straight and to clear any ambiguity regarding the evidence, whilst also ensuring no prejudice is caused to anyone. A note of caution was sounded in Swapan Kumar Chatterjee v Central Bureau of Investigation, (2019) 14 SCC 328 as under:
10.The first part of this section which is per- missive gives purely discretionary authority to the criminal court and enables it at any stage of in- quiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any per- son in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.
11.It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice.
The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.
12.Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision."
" ........In Harendra Rai v State of Bihar, 2023 SCC OnLine SC 1023, a 3-Judge Bench of this Court was of the opinion that Section 311, CrPC should be invoked when '... it is essential for the just decision of the case."
13. Pertinently, there is a thin line of distinction between filling up lacuna in a case and re-examination a witness for fair and just decision of the case. Having considered the matter in hand and considered the law cited supra, interest of justice would be met by granting only one opportunity for recalling and examination of witness. CRM (M) 3/2024 Page 6 of 6
14. With the consent of the Learned counsel for the parties, the instant petition is taken up for final disposal at this stage. This Court in the peculiar facts and circumstances of the case, is of the view that one opportunity is required to be granted to the prosecution to re-examine P/W Pranav Khajuria with a view to do complete justice and I am of the view that no grave prejudice will be caused to either of the parties.
15. Therefore, the case is remanded back to the court below i.e. Principal District and Session Judge, Jammu for re-examining the prosecution witness Pawan Khajuria.
16. In light of the peculiar facts and circumstances of the case coupled with settled legal position, it is further made clear that once, the statement of P/W namely Pranav Khajuria is recorded, then the defence counsel will be at liberty to cross examine the aforesaid witness. After the examination in chief and cross-examination of the said witness is complete, then the trial court can proceed further in the matter in accordance with the law and pursuant thereto, the case can be listed for final arguments.
17. Disposed of.
(WASIM SADIQ NARGAL) JUDGE Jammu 11.01.2024 Gh. Nabi/Secy.
Whether the Judgment is Reportable: Yes/No
Whether the Judgment is Speaking: Yes/No