Mahesh Sethi vs State of Punjab

R.P. Nagrath, J.—This revision is directed against the order passed by the trial Court, permitting the application u/s 311 Cr. P.C. to summon and examine the mother of the deceased as a necessary witness. The son of the petitioner was married to Richa deceased, the daughter of Ravinder Kumar, who recorded FIR in the Police Station for the death of his daughter under mysterious circumstances within 7 years of her marriage. The facts emerging from the FIR are that the son of the petitioner and Richa deceased performed love marriage on 21.10.2008, which was not attended by the petitioner despite invitation. Ultimately they consented to the arrangement and solemnized marriage with rituals on 07.07.2012. There are then allegations of harassment by in-laws on account of not bringing any dowry.

The mother of the deceased was not cited as a witness nor her statement was recorded by the Police u/s 161 Cr. P.C. But it was stated in the application that being mother of the deceased she is well conversant with the facts and may be permitted to be summoned and examined as a witness. The application was opposed on the ground that Jyotsina, the sister of deceased was a prosecution witness but she has left for abroad. Therefore, there is an attempt of prosecution to fill in the lacuna as statement of father of Richa deceased would have remained uncorroborated.

After hearing learned counsel for the petitioner, I do not find any substance in the contention that this is only an attempt to fill in the lacuna in the case because even if the sister of the deceased was available for examination, there was no reason for leaving the mother of deceased as a necessary prosecution witness. It is rather to advance the cause of justice that the examination of mother of deceased is essential. There is a wide power with the trial Court to summon and examine such a witness u/s 311 Cr. P.C. Section 311 Cr. P.C. says 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.

Therefore, second part of the provision rather makes it mandatory for the Court to 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. There is no substance in the contention that any prejudice would be caused to the accused facing trial because they will have every right to cross-examine this witness, who is summoned and examined in terms of Section 311 Cr. P.C. The petitioner facing trial can seek little time for the purposes of cross-examination of such a witness summoned u/s 311 Cr. P.C. after the chief examination is recorded in order to enable them to cross-examine the witness. If and when such a prayer is made, the trial Court will adjourn cross-examination of the witness but this observation will not give a right to the petitioner or any other accused facing trial to delay the disposal of the case as adjournment for cross-examination at best can be sought for only two or three days after the chief-examination of the added witness has been recorded. With these observations, there is no ground to interfere in the impugned order passed by the trial Court and the petition is dismissed in limine.