Bajrang Kumar and Others vs State of Chhattisgarh

Fakhruddin, J.—The revision is directed against the order dated 31-3-2004 passed by the learned Addl. Sessions Judge, Korba in Sessions Trial No. 439/2000, whereby the application filed by the accused has been rejected for re-examination of certain witnesses u/s 311, Cr.PC.

It is pointed out that earlier when the witnesses were examined, the articles and properties were not made available for identification. It is further pointed out that the re-examination of the witnesses is material and necessary. The said application was opposed. The Trial Court while rejecting the application noted that the prosecution evidence is complete and the matter is at the stage of defence evidence.

Learned Counsel for the applicants contended that so far as examination/recall of the witnesses is concerned, Section 311, Cr.PC empowers the Court to summon a material witness or to examine a person present in the Court or to recall a witness already examined.

Section 311, Cr.PC which was earlier Section 540 in the old Cr.PC is relevant and is quoted below:--

"Power to summon material witness, or examine person present.-- Any Court may, at any stage of any enquiry, 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."

Only a plain reading of Section 311, Cr.PC it is evidently clear that the power can be exercised at any stage by the Court. It can be exercised at the behest of the accused, at the behest of the defence and even at the behest of the prosecution.

The decision of the Apex Court in the case of Jamatraj Kewalji Govani Vs. The State of Maharashtra, is pertinent. Paragraphs 5 and 6 of the said judgment are quoted below:--

"5. The question falls to be considered u/s 540 of the Code of Criminal Procedure. That Section is to be found in Chapter 46 of the Code among several others which have been appropriately described in the heading to the chapter as ''miscellaneous''. It provides : ''Section 540 : Any Court may, at any stage of any inquiry, trial or other proceedings 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 essential to the just decision of the case.''

The Section gives a power to the Court to summon a material witness or to examine a person present in Court or to recall a witness already examined. It confers a wide discretion on the Court to act as the exigencies of justice require."

The Apex Court in the case of Shailendra Kumar v. State of Bihar (AIR 2001 SC 4984) in Para 11 has held as under :--

"11. Bare reading of the aforesaid section reveals that it is of very wide amplitude and if there is any negligence, laches or mistakes by not examining material witnesses, the Courts function to render just decision by examining such witnesses at any stage is not, in any way, impaired. This Court in Rajendra Prasad Vs. The Narcotic Cell Through its Officer in Charge, Delhi, , observed. After all, function of the Criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."

This Court also dealt with the similar matter in Misc. Criminal Case No. 2683/03, Ashwani Kumar and Ors. v. State of Chhattisgarh, decided on 6-1-2004, reported in 2004(1) M.P.H.T. 94 (CG).

In the case in hand earlier when the witnesses were examined, the articles and properties were not made available. It is not the fault of the accused. It was for the Court and prosecution to see that the articles and properties are available at the time of examination of witnesses in Court. That having not been done and prayer being made, the Court below, in the opinion of this Court was not justified in rejecting the application for the applicant. The prosecution may examine that the articles are such which connect the accused with crime and the accused has equal right to show that the articles do not connected him with the crime.

Having considered the facts and circumstances, the material on record and in view of the law laid down by the Apex Court in the aforesaid cases, the revision is allowed. The impugned order dated 31-3-2004 passed by the Trial Court is set aside. The witnesses now be re-examined and articles and properties be made available and the witnesses be allowed to cross-examine and re-examine, as the case may be.