Pappoo and Others vs State of U.P.

D.C. Srivastava, J.—The only short question of law, involved in this petition u/s 482, Code of Criminal Procedure is regarding the scope of Section 311, Code of Criminal Procedure.

Section 311, Code of Criminal Procedure reads 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.

For appreciating the scope of Section 311, Code of Criminal Procedure to the facts of this case, certain facts are material. In Sessions Trial No. 452 of 1992 before the IInd Additional Sessions Judge, Bulandshahr, two prosecution witnesses Hem Nidhi Sharma and Om Prakash were examined on 13th and 14th October, 1993. Smt. Urmila was examined as third witness on 14.2.1994. They are all eye-witnesses to the incident. Other witnesses were also examined subsequently. Statement of the accused was recorded and the case was listed for arguments. On 28.6.1996, that is after considerable lapse of time from the date of recording the statements of the above three eye-witnesses, not only the eye-witnesses aforesaid filed affidavits but also an application was moved by the defence for recalling the three witnesses for further cross-examination. This application was rejected by the Additional Sessions Judge. It is this order of the Additional Sessions Judge which is under challenge. The contention has been that in exercise of powers u/s 311, Code of Criminal Procedure, learned Additional Sessions Judge should have recalled these witnesses for further cross-examination.

Section 311, Code of Criminal Procedure, as quoted above, inter alia, provides that any court at any stage of trial, may recall and re-examine any person already examined and after summoning them, may examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

Learned Additional Sessions Judge after close of prosecution evidence did not direct that further evidence from the witnesses already examined, in the nature of affidavits, be filed. Consequently, if after lapse of two to three years, three eye-witnesses decided all of a sudden on 28.6.1996 to file affidavits, the discretion of the learned Additional Sessions Judge could not be pressed for the re-examination of the witnesses. Re-examination of the witnesses is necessitated only when some ambiguity in their statements is found or pointed out. Recall of a witness for further cross-examination becomes necessary when adequate and full opportunity of cross-examination was not afforded to the defence. It is not a case where full opportunity of cross-examining aforesaid witnesses was not afforded to the defence. At no stage before 28.6.1996, the accused applied for permission to further cross-examine the witnesses whose statements were already recorded. Consequently, on mere asking of the witnesses or the accused, the Court was not obliged to exercise jurisdiction u/s 311, Code of Criminal Procedure Such jurisdiction could be exercised only when the court finds that evidence or further evidence of such person appears to be essential to the Just decision of the case. Affidavit, as stated is not substantive evidence. Consequently if the three eye-witnesses subsequently filed affidavits of their own, it will not be treated as substantive evidence. Consequently, no reexamination on the basis of such affidavits, filed suo motu by the three witnesses, is called for. If the witnesses were not to be re-examined, the question of affording further opportunity for cross-examination was also not desirable. What will be the value of the affidavits filed by the eye-witnesses voluntarily and subsequently is a matter to be considered by the trial Judge.

Effective examination of the facts of the case, affidavits and peculiar circumstances of the case show that the learned Judge cannot be said to have failed to exercise discretion u/s 311, Code of Criminal Procedure The discretion was rightly exercised. Hence, there is no merit in this petition which is hereby dismissed.