Amarjit Singh Brar vs State of Punjab and Another

Sabina, J.—By way of the present petition, petitioner has challenged the order dated 25.7.2012 Annexure P-5 whereby application moved by the prosecution u/s 311 of the Code of Criminal Procedure, 1973 (''Cr.P.C.'' for short) for recalling PWs Kulwinder Kaur and Harbhajan Singh was allowed. After hearing the learned counsel for the parties and the learned State counsel, I am of the opinion that the instant petition deserves to be allowed.

Section 311 Cr.P.C., reads as under:-

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 a 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.

Thus, as per the above provision, the Trial Court has ample power to recall a witness for further examination if it is necessary for the ends of justice.

In the present case, PWs Kulwinder Kaur and Harbhajan Singh were duly cross-examined by the defence counsel. Application u/s 311 Cr.P.C. Annexure P-3 was moved by the prosecution to re-summon PWs Harbhajan Singh and Kulwinder Kaur for re-examination as there were discrepancies in their examination-in-chief and cross examination. Trial Court while allowing the application has observed as under:-

Heard on the application u/s 311 Cr.P.C. For recalling the witness Kulwinder Kaur and PW Harbhajan Singh for the purpose of re-examination. After hearing arguments, I have gone through the judicial file. In this case the prosecution has concluded his entire evidence and evidence was closed by order of this court on 31/10/11 after providing the numerous opportunities. The present application has been filed at belated stage. So in these circumstances, one more last opportunities is granted to the prosecution to recall the witness Kulwinder Kaur and PW Harbhajan Singh for the purpose of re-examination at their own responsibility, however the prosecution can take dasti summons from the court at his own. Hence the application stands disposed of accordingly.

Now to come upon 10.8.2012 for re-examination of the PW Kulwinder Kaur and PW Harbhajan Singh.

A perusal of the above order reveals that the Trial Court has not given any reason as to why the re-summoning of PWs Kulwinder Kaur and Harbhajan Singh was necessary for the just decision of the case. PWs Kulwinder Kaur and Harbhajan Singh had been duly cross-examined by the defence counsel. The statements made by the witnesses could be scrutinized at the time of decision of the trial by the Trial Court. Learned State counsel could have sought re-examination of the witnesses after their cross-examination was completed by the defence counsel if any discrepancy was found in the statements of the witnesses. However, after a period of more than one year, application was moved by the prosecution for recalling of PWs Kulwinder Kaur and Harbhajan Singh for re-examination. At this stage, statement of the accused had been recorded u/s 313 Cr.P.C. after close of prosecution evidence. Application u/s 311 Cr.P.C. cannot be allowed for allowing the prosecution to fill up any lacuna in its case. The statements of the witnesses had been recorded and had to be read/appreciated by the Trial Court at the time of decision of the case. In the facts of the present case, witnesses could not be called for re-examination to clarify their statements. The Trial Court, thus, fell in error in allowing the application moved by the prosecution u/s 311 Cr.P.C. without any valid reason. Accordingly, this petition is allowed. Impugned order dated 25.7.2012 (Annexure P-5) is set aside.