Ghan Shyam Pandey vs State of U.P. and Another

J.C. Gupta, J.—Parties counsel are present and since the relevant material has already been placed on record by the parties with the affidavits, it is not necessary to summon the lower courts record.

This application in revision is directed against the order dated 5.9.1998 passed by Illrd Additional District and Sessions Judge. Sultanpur, in S.T. No. 85 of 1990 u/s 302/396/323/149/ 147/148. I.P.C. State v. Krishna Mohan and Ors. whereby the learned Sessions Judge allowed the application moved on behalf of opposite party No. 2 for recalling P.W. 1 for further cross-examination. The order appears to have been passed by the learned Sessions Judge in exercise of powers u/s 311, Code of Criminal Procedure.

The facts relevant for the purpose of this revision in brief are that opposite party No. 2 along with others are facing trial before Illrd Additional Sessions Judge and in the said trial the stage of defence has reached. It further appears that after the statement of D.W. 1 was recorded and the General Diary (Dincharya Bahi of Lekhpal) had been brought on record wherein certain entries are said to have been made by P.W. 1 showing his presence at a place far removed from the place of incident, an application was moved by accused Sheetla Prasad for recalling P.W. 1 for further cross-examination with regard to the entries of the general diary of the Lekhpal. This application was rejected by the learned Sessions Judge by the order dated 21.8.1998 on the ground that the accused persons had sufficient opportunity to cross-examine the witness and that the Court did not think it necessary to recall the said witness for further cross-examination. It further ap>pears that thereafter an application was moved on behalf of another accused-opposite party No. 2 for recalling the said witness stating therein that the accused persons had no knowledge of the aforesaid entries at the time when P.W. 1 was cross-examined and therefore, for the ends of justice it was necessary that the defence be given an opportunity to effectively cross-examine the said witness regarding his presence at the place where he is said to be on duty at the relevant time. This time the learned Magistrate by the impugned order has allowed the application and has recalled P.W. 1 for further cross-examination.

Learned Counsel for the Applicant vehemently argued before this Court that the impugned order amounts to reviewing the earlier order dated 21.8.1998 passed by the Court below which was not permissible in law under the provisions of Section 362 of the Code of Criminal Procedure and in support of his argument he placed reliance on a number of decisions which I will refer in the later part of this judgment.

In order to appreciate the argument of the learned Counsel for the Applicant, it is necessary to have a glance on the provisions of Section 362, Code of Criminal Procedure which runs as follows:

Court not to alter judgment.--Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical arithmetical error.

A plain reading of the above provisions will indicate that the bar created u/s 362. Code of Criminal Procedure applies only to judgments and final orders whereby proceeding is disposed of. It could not be doubted that the principle applicable to judgments and final orders does not apply to interlocutory orders. This view of mine is supported by the decision in Sahdeo Tanti Vs. Bipti Pasin and Another, . wherein it was held that the order rejecting prayer for cross-examination of a witness is not a judgment within the meaning of Section 362, Code of Criminal Procedure, being in nature of interlocutory order, the Court, in the ends of justice, can allow the prayer made second time even on the same fact.

Learned Counsel for the Applicant on the other hand relied upon the decision in the case of Sankatha Singh Vs. State of U.P., In the said case after conviction had been recorded by the Magistrate, the accused persons filed appeal which was dismissed as neither the Appellants no their counsel appeared to argue the appeal. The order dismissing appeal further indicated that the appeal was dismissed on merits after perusal of the record by the appellate court. Thereafter an application was made by the Appellants with the prayer that the appeal be restored to its original number so that justice could be done. The said application was allowed by the appellate court and the order dismissing the appeal on merits were recalled. When the appeal came up for hearing before the successor-in-office, the previous order restoring the appeal was recalled on the ground that the appellate court had no power to review or recall the earlier order whereby appeal has been disposed of and therefore, the order of restoration of appeal was ultra vires and without jurisdiction. The High Court in revision agreed with the view of the appellate Judge and dismissed the revision application. The matter was taken to the Apex Court and it was in these circumstances, that it was held that as the appeal had been disposed of finally on merits by the earlier order, the successor-in-office had no power or jurisdiction to review to recall that order.

The other case relied upon by the learned Counsel for the Applicant is Bindeshwari Prasad Singh Vs. Kali Singh, . This case also related to a final order and it was held that there was no provision in Code of Criminal Procedure empowering the Magistrate to review or recall a final judicial order passed by him earlier.

Reliance has also been placed on the case of Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee and Anr. 1990 SCC 327. In this case the High Court by its earlier order had rejected the application moved u/s 482, Code of Criminal Procedure by which the order of the Magistrate summoning the Applicant was challenged. Since the order of the High Court had acquired the status of a final order, it was held that the High Court had no power to review or recall the earlier order in view of the provisions of Section 362, Code of Criminal Procedure.

The next case relied upon is Rajul and Anr. v. State of U.P. 1983 CriLJ 635. The facts of this case would also reveal that when the appeal pending before the High Court was decided on merits after rejection of adjournment application moved on behalf of the counsel for the Appellants, it was held that the High Court had no power to alter or recall the judgment in view of the bar created u/s 362, Code of Criminal Procedure.

In the present case undisputedly the trial in question has not yet been concluded, it could also not be said that by the earlier order dated 21.8.1998 the learned Judge had disposed of the case pending before him. In my opinion, therefore, the order dated 21.8.1998 is not covered by the provisions of Section 362, Code of Criminal Procedure.

Learned Counsel for the Applicant in revision then heavily placed reliance upon the decision of a single Judge of Calcutta High Court in the case of Sridhar Das Vs. State of West Bengal, . It transpires from the facts narrated in the said report that in the session trial pending before the trial court three witnesses, namely, P.W. 3, P.W. 6 and P.W. 8 were examined and they were declared ''hostile'' and cross-examined on behalf of the prosecution as well as on behalf of the accused persons and were discharged. An application was moved on behalf of the prosecution containing the prayer for reexamination of those witnesses and the same was rejected on 22.8.1994. Subsequent second application containing same prayer was also rejected on 14.11.1994 by the same Court. However, the third application moved on behalf of the public prosecutor was subsequently allowed and it was this order which was challenged before the High Court. The learned Judge who decided the revision was of the view that the prosecution could not be allowed to fill up the lacuna of the prosecution case brought out by the cross-examination of the prosecution witnesses on behalf of the accused persons by re-examination of those witnesses by recalling them by the prosecution to the prejudice of the accused persons. It was in these circumstances that an observation was made that subsequent application with the prayer of recalling the witnesses for reexamination was not maintainable in law.

It was then next argued by the Applicant''s counsel that there was no justification for the Court below to have ordered recalling of P.W. 1 for further cross-examination by invoking the provisions of Section 311, Code of Criminal Procedure.

u/s 311, Code of Criminal Procedure the Court has unrestricted powers of summoning of witnesses. There is a duty caused upon the Court to arrive at the truth by all lawful means and one of such is the examination of witnesses of its own accord. The object underlying Section 311, Code of Criminal Procedure is that there may not be failure of justice on account of mistake of either party in bringing the valuable and material evidence on record. If after examining the record, the Court feels that some points had been left obscure and in order to elucidate them it is necessary to recall certain witnesses, it has the power to recall and re-examine them under the provisions of Section 311, Code of Criminal Procedure It is, therefore, clear that the Court not only has the power but a duty is cast upon every Court to summon or recall witnesses for a just decision of the case for meeting the ends of justice. However while exercising the said power Court should always keep in mind that it is not to be exercised to fill up its lacuna.

In the case in hand after when the statement of D.W. 1 was recorded and the ''Dincharya Bahi'' of the Lekhpal had been brought on record, it transpired to the defence that the said document contained some entries which prima facie showed presence of P.W. 1 at a place far removed from the scene of occurrence and therefore, his presence at the time of incident was doubtful. Whether or not those entries were made by the Lekhpal in his own hands or have any bearing on the testimony of P.W. 1, the said questions can only be examined and appreciated after when P.W. 1 is given an opportunity to meet those entries. It is in this background that the trial court thought it expedient in the interest of justice to recall P.W. 1 for further cross-examination and it is relevant to mention here that the trial court has restricted further cross-examination only to that extent. It may also be mentioned here that in pursuance of the impugned order further cross-examination of P.W. 1 has already been completed.

For the reasons stated above, this Court finds no force in this application in revision and the same is accordingly dismissed. The trial court is directed to proceed with the trial expeditiously and conclude the same preferably within a period of two weeks from the date of communication of this order or from the date a certified copy of the same is produced.

A certified copy of this order may be supplied to the parties counsel within three days on payment of usual charges.