Imrat Lal vs State of M. P.

A.S. Tripathi, J.

This revision has been filed against the order dated 26.11.1994 passed by the 1st Addl. Sessions Judge of Vidisha rejecting the application of the Petitioner to re-examine P. W. 8 Dinesh Kumar Sharma.

Heard Shri A. K. Shrivastava, counsel for the petitioner / accused and Shri P. D. Agrawal, Panel lawyer appearing for the non-petitioner / State and perused the record.

From the record, it appears that one of the witness P. W. 8 Dinesh Kurnar Sharma was examined and cross-examined at one stage of the trial and the evidence was concluded. Then another counsel appearing for the accused applied for re-examination of P. W. 8 Dinesh Kumar Sharma on certain points. The prayer was considered by the trial Court and it was refused.

Learned counsel for the petitioner pointed owt that the application moved for re-examination of P. W. 8 Dinesh Kumar Sharma was on a point of material contradictions between the statement recorded u/s 161 Cr. P. C. and statement given in Court. These contradictions could not be put to the witness by the earlier counsel who cross examined the witness at earlier stage. The material contradiction so pointed out is definitely has a bearing on the charge on which the petitioner is being tried. As such judicial discretion ought to have been exercised giving reasonable opportunity to the petitioner to re-examine and cross-examine the witness on the point of material contradiction left over earlier under the provisions of Section 311 Cr. P. C.

Section 311 Cr. P. C. provision for a discretion to the Court, to permit re-examination or cross-examination of witness already examined or cross-examined in certain circumstances for the ends of justice.

However, Counsel for the State pointed out that this discretion could not be exercised in every case to eanble the parties to fill up their lacuna in their cases. It is true that lacuna cannot be filed up by the prosecution by recalling a witness, but this is not so in the case of the defence when the material fact has been left over which may have a bearing on the charge itself. Learned Panel Lawyer for the State referred the case of Dilipat v. State of M. P. 1991 (I) JDD (Cr) 1. In that case, this Court had categorically held that the provisions of Section 311 Cr. P. C. are not meant for filling up lacuna by the parties. The first part of this section is discretionary and the second part of this section is mandatory for the Court. The second part of this section applies to the facts of the present case. The material contradictions left over at the time of cross -examination certainly have a bearing on the charge being faced by the petitioner. In such a case, when the accused had prayed to re-examine the witness on material contradictions, it was the duty of the Court to recall the witness and re-examine him applying the second part of Section 311 Cr. P. C. Ultimately in both the cases of two parts of this Section, it is a discretion of the Court to permit re-examination or corss-examination in appropriate cases for the ends of justice.

The discretion must be exercised judicially and not arbitrarily. In this particular case, when the material contradictions as pointed out have bearing on the charge itself, it was the duty of the Court to permit re-examination and cross-examination of the witness under the second part of Section 311 Cr. P. C.

Therefore, I find that refusing the application u/s 311 Cr. P. C. may result in miscarriage of justice, and as such, the revision is allowed. The application u/s 311 Cr. P. C. is also allowed with a direction that the tiral Court shall summon P. W. 8 Dinesh Kumar Sharma for cross examination by the petitioner / accused and the prosecution will also have a liberty to reexamine him and if he turns hostile, to cross examine the same witness according to the provisions of the Code.