Bant Singh vs State of Punjab .

J. S. Sekhon. J.(Oral)

Bant Singh, petitioner, was tried and convicted by the trial court on a charge for offence punishable under section 9 of the Opium Act, 1878, for the possession of 3 kgs of opium. During the trial, the formal evidence of MoharrirHead Constable Suba Singh was tendered in evidence. Bant Singh accused petitioner, then went up in appeal against the order of the trial court. During the course. of arguments in that appeal, the learned Additional Sessions Judge, Barnala, allowed the application of the prosecution under section 311 of the Code of Criminal Procedure, 1973, for resummoning Moharrir Head Constable Suba Singh and to tender fresh and properly attested affidavit by holding that simple defect in the attestation of the affidavit was only a technical flaw and the evidence of the witness was essential for just decision, of the case vide impugned order dated 5.12.1989. Feeling aggrieved against that order, the accused had invoked the inherent jurisdiction of this Court under section 432 of the Code of Criminal Procedure for quashing the same.

I have heard the learned counsel for the parties, besides perusing the record. No doubt, allowing of (every application under section 311 of the Code, during the pendency of the appeal. would amount to filling up the lacuna in the case of either side, yet all the same, the legislature in its wisdom has enacted these provisions for empowering the Court to summon, recall or re examine material witnesses, at any stage of the inquiry, trial or other proceedings, if such evidence is essential for just decision of the case. The provisions of section 311 of the Code, are as under :

"Section 311. 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 to be a witness or recall and reexamine any person already examined and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case."

A bare glance through the above referred provisions leaves no doubt that that word "any" figuring in this section repeatedly qualifying `stage''. `person'' or witness'' does reveal that the Court has been given wide powers to summon or recall, examine or reexamine any person present before it provided his evidence is essential for the just decision of his case.

The question then arises whether these provisions empower the appellate Court also to recall or reexamine any witness. This question has to be answered in the positive, as an appeal being a continuation of the trial and appellate Court has to reappraise the entire evidence, there is no option but to hold that the words `any Court'' figuring in this section would embrace the appellate Court also. A Division Bench of this Court in Sukhdev Singh v. State of Punjab, 1982(2) Criminal Law Journal at 2201, while interpreting the scope of the provisions of section 311 of the Code held that the paramount consideration in allowing the application under this section is the anxiety for justice. In that case, the application under Section 311 of the Code was made before the conclusion of arguments before the trial Court in State of Punjab v. Des Raj, 1978 Criminal Law journal 1329, had also taken a similar view. The apex Court in Jamatraj Kewaljit Govani v. State of Maharashtra, AIR 1968 S.C. 178, while interpreting the provisions of Section 540 of the old Code of Criminal Procedure, which are analogous to the provisions of Section 311 of the new Code, had observed that 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 of the bonafide opinion that the evidence must be taken for the just decision of the case.

Thus, the only question that survives for determination is whether in the circumstances of this case, the evidence of'' Moharrir Head Constable Suba Singh is essential for the just decision of the case or it would amount to rebutting the defence version. It is noteworthy that the appellate court has simply allowed the prosecution to reexamine this witness or tender his evidence on duly attested affidavit in order to rectify a technical flaw in the attestation of the affidavit already tendered by the trial Court. Keeping in view that the offence, under section 9 of the Opium, Act is against the society at large, as the consumption of the same would adversely affect the humanity it transpires that the rectification of such a technical flaw was rightly allowed by the appellate Court, especially when it would not amount to introducing an altogether fresh evidence.

Consequently, for the reasons recorded above, it cannot be said that the appellate Court had taken a wrong view of the matter. This petition, therefore, fails and is hereby dismissed. The parties through their counsel are directed to appear before the trial Court on 5121991.