Mauji Ram vs State of Haryana

K.P.S. Sandhu J.(Oral).

This is a revision petition filed by Mauji Ram petitioner against the order of the Session Judge, Sonepat, dated Ist June, 1985, by which he allowed the prayer of the Public Prosecutor to recall Om Singh PW3 who had earlier been examined by the prosecution.

The facts which give rise to the present petition are as follows. Mauji Ram petitioner and his coaccused are being tried in the court of the Sessions Judge Sonepat, under Section 306 of the Indian Penal Code. After examining the prosecution witnesses including Om Singh PW3 the prosecution closed its evidence. The petitioner and his coaccused were then examined under section 313 of the Code of Criminal Procedure and after examining three defence witnesses they closed their evidence. The learned trial Judge then fixed the case for arguments on 22nd May, 1985. On 22nd May, 1985, the Police Prosecutor moved an application under section 311 of the Code of Criminal Procedure for recalling Om Singh PW3 to prove certain documents. The application was resisted by the defence, but the learned Sessions Judge allowed the same and ordered that Om Singh PW3 be recalled as a witness. Aggrieved by this order, the petitioner has come up in revision in this Court.

Mr. A.S. Nehra, learned counsel for the petitioner, has vehemently contended that the prosecution was earlier afforded full opportunity to examine Om Singh PW3. Om Singh never referred to any document in his statement before the Court nor did he disclose anything about the aforesaid document in his statement under section 161 of the Code of the Criminal Procedure. So, at this belated stage to allow Om Singh PW to place certain documents on record would amount to demolishing the case of the defence. It is further contended that there is no justifiable ground for allowing Om Singh to produce certain documents. In this context he has placed reliance on a Single Bench authority reported as Jagdish Chander v. The State of Haryana, (1984(1) Recent Criminal Report 95) 1983(2) C.L.R. 432 , where an application was filed after the close of the evidence and hearing of the arguments of the parties on the date fixed for order and no valid reason was given by the applicant in support of the application was allowed by the trial Judge without giving any findings that the evidence of the witnesses at this stage was necessary for the just decision of the case it was held that the discretion exercised was erroneous. Although this contention was raised by the defence before the learned trial Judge but the trial Judge rejected the same by relying upon Sukhdev v. The State of Punjab, 1983(2) C.L.R. 318 I am afraid that the ratio of Sukhdev Singh''s case (supra) does not apply to the facts of the case in hand. The aforesaid Division Bench decision in sukhdev Singh''s case has in clear terms held that section 311 of the Code of Criminal Procedure was not to be used to enable the prosecution either to improve its version at a later stage or to enable it to repair the lacuna. It has been further held in Sukhdev Singh''s case (supra) that "while exercising this discretion the Court has to keep in its mind the well known principle of law that the order should not operate as a rebuttal the case set up by the defence after the prosecution case is closed.

In the present case, as observed earlier, the prosecution had an opportunity of examining Om singh PW at an earlier stage. He did not refer to any documents which are sought to be produced at this stage by the prosecution. Nor any mention was made of the aforesaid documents in his statement under section 161 of the Code of Criminal Procedure. There was no justifiable ground for the learned trial Judge to allow the application of the Public Prosecutor at this stage. To allow the application at this stage would certainly amount to filling in the lacuna and undoing the case of the defence. I am afraid that by the mere insertion of the words in his order by the learned Sessions Judge that it was necessary for the just decision of the case to allow the application the requirement of Section 311 of the Code of Criminal Procedure is not fulfilled.

For the aforesaid reasons, I allow this revision petition and set aside the impugned order of the learned Sessions Judge.