Amar Pal and Others vs State of U.P. and Others

Bhagwan Din, J.—Heard Sri N.K. Sharma, the learned Counsel appearing for the revisionists and the learned A.G.A.

From the impugned order it appears that the prosecution examined three witnesses, who have been adequately cross-examined by the defence counsel. On closure of the prosecution evidence the accused/revisionists moved an application u/s 311, Code of Criminal Procedure for recalling the witnesses for further cross-examination, in view of the affidavits, filed by them in the Court, resiling from their earlier statement, recorded in the Court. The learned IXth Additional Sessions Judge, Meerut, before whom the trial of the accused revisionists is pending, rejected the application on the ground that the affidavits of the witnesses were received by post, together with the applications. The applications for taking the affidavits were not brought on the record and treated to be the part of the record.

The learned Counsel appearing for the revisionist admits that the Court below has rightly refused to bring the affidavits, which were received by post on record, but contends that in view of the observation made in the case of Sukhhan v. State of U.P. 1988 JIC 728 (All), the recalling of the witnesses cannot be refused. This Court has held that if the fact was brought to the notice of the Court below that the witnesses have filed affidavits in the Court resiling to support to prosecution version and thus, the affidavits were clearly in contradiction with the earlier statements made on oath. It was only very natural and proper that they should have been summoned afresh u/s 311, Code of Criminal Procedure and confronted with their behaviour. This was more so necessary in order to remove any prejudice that might be caused to the accused persons in view of their testimony and their subsequent affidavits.

Having regard to the above view of this Court taken in Sukhhan''s case, (supra) I allow the revision and quash the order dated 27.11.1997 passed by the IXth Additional Sessions Judge. Meerut, rejecting the application of the accused persons u/s 311, Code of Criminal Procedure The learned IXth Additional Sessions Judge, Meerut will summon the witnesses and allow the defence to cross-examine with reference to the affidavits allegedly sworn by them.

Let a certified copy of this order be furnished to the learned Counsel appearing for the parties on payment of usual charges, within 48 hours.