Raj Kumar vs State of Jammu & Kashmir and Others

Y.P. Nargotra, J.—The short question involved in this petition is, whether a trial court can recall a witness who has already been examined

and cross-examined at the behest of the accused simply on the ground that such witness had applied the court for making a fresh statement on the

plea that the earlier statement made by him was not made truthfully?

The petitioner are accused facing trial in the case State v. Raj Kumar and Ors. before the court as Ist. Addl. Sessions Judge Jammu for

commission of the offences u/s 302, 452/34 RPC and 4/25 Arms Act. In the trial PWs.Ram Rakhi and Asha Devi stand already examined and

cross-examined. However later on both the said prosecution witnesses filed an application before the trial court supported by an affidavit seeking

their fresh examination as according to them they had made the false statement in their earlier deposition under the pressure of the police. The

application of the prosecution witnesses was rejected by the trial court. After the rejection of the application accused party seized the opportunity

and moved the application for recall 6f the said two prosecution witnesses for further cross-examination by involving the provision of Section 540

Cr.P.C.

Learned trial court has rejected the application of the accused by its order dated 29.3.2002 hence the present petition u/s 561.A Cr.P.C.

The challenge to the order impugned has been thrown primarily on the ground that the provision contained in the Section 540 Cr.P.C. has been

wrongly interpreted and applied by the trial court to the facts and therefore the order impugned is bad in law. Therefore, the question arises, can

the provisions of Section 561-A. Cr.PC be invoked for correcting an error in law?

Section 561.A Cr.P.C reads:

561.A. Saving of inherent power of High Court-Nothing in this code shall be deemed to limit or affect the inherent power of the High Court to

make such orders as may be necessary to give affect to any order under this Code,. Or to prevent abuse of the process of any court or otherwise

to secure the ends of justice.

This section is para materia with Section 482 of Central Cr.P.C. The ambit and scope of the section was examined by the Apex court in case

State of Karnataka Vs. M. Devendrappa and Another, and it has been laid down:--

Exercise of power u/s 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on

the High court. It only saves the inherent power which the court possessed before the enactment of the Code. It envisages three circumstances

under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code (ii) to prevent abuse of process of

court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the

exercise the inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts,

therefore have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed

upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High

courts. All courts whether civil, criminal, possess in the absence of any express provision as inherent in their constitution, all such powers as are

necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedefre

videtur et id since quo res impsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist).

While exercising powers under the Section 482 Cr.PC the court does not function as a court of appeal or revision. Inherent jurisdiction under the

section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid

down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist.

Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the court has

power to prevent abuse. It would be an abuse of process of the court to allow any action, which would result in injustice and prevent promotion of

justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/ continuance of it amounts to abuse of the

process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the

court may examine the question of fact. When a complaint is sought to be quashed it is permissible to look into the materials to assess what the

complainant ahs alleged and whether any offence is made out even if the allegations are accepted in toto.

Therefore the court cannot go into the legality of the order passed by the learned trial court u/s 561.A which could be done by the appellate court

or revisional court.

Learned counsel for the petitioner however argued that validity of the order be examined as otherwise ends of justice would be defeated and if

the accused are denied the opportunity of cross-examination of the said witnesses they would loose the right of bringing on record some more

material in the cross examination for challenging the credibility of the said witnesses.

There is some force in the contention raised. Though it is in the domain of powers of the trial court to assess and evaluate the evidence of a

witness yet propriety and justice demands that an accused must be given full opportunity to attack the evidence of a witness who has deposed

against him in a trial on any ground whatsoever permissible by law. For this reason alone I am embarking upon the legal scrutiny of the order

impugned.

The question involved in the present case is identical to the question arising for consideration in case Munshi Ram Thappa v. Rattan Singh and

Ors. 2000 KLJ 502 in which this court held:--

""The Supreme court had an occasion to interpret the provisions of similarly worded Section 540 of the previous Code in Jamatraj Kewalji

Govani Vs. The State of Maharashtra, and it was laid down that Section 540- is intended to be wide as the repeated use of the word ""any

throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the later part is mandatory. The use

of the word ""may"" in the first part and of the word ""shall"" in the second firmly establishes this difference. It was laid down that as the section stands

there is no limitation on the power of the court arising from the stage to which the trial may have reached provided the court is bonafide of the

opinion that for the just decision of the case the steps must be taken and this power is exercisable at any time.

In Mohd. Husain Umar Kochra etc. Vs. K.S. Dalipsinghji and Another etc., a question of recalling a witness who had already been examined

came up for consideration. One PW AH was examined as witness and after his cross examination had concluded the defence had moved an

application for recalling him for cross examination. The request was declined. The plea taken by the defence for recalling the witness was that the

witness was repentant and wanted to say that he had given false evidence. The Supreme Court held that no ground was made out for recalling Ali

because there was no affidavit from Ali nor was there any other material showing that his testimony was incorrect in any material particular. The

court emphasized that the court has inherent power to recall a witness if it is satisfied that he is prepared to give evidence which is materially

different from what he had given at the trial but there must be some material from which the court could be satisfied that the witness should be

recalled for giving further statement, may be in contradiction with the statement already made by him.

A similar view was taken by the Allahbad High Court in Sukhan v. State of U.P. 1988(1) Cri 245. In that case also after a witness had been

examined in the court he submitted an affidavit denying he had witnessed the occurrence. The court allowed the application and summoned the

witness to explain his behaviour. Since the witness in this case had sworn the affidavit giving facts which in contradiction to what he had deposed in

the court, discretion exercised by the court in recalling him for further cross examination in order to confront him with what he had earlier deposed

in the court, the order passed by the Addl. Sessions Judge is neither abuse of the process of court nor otherwise unnecessary to secure the ends of

justice to invite exercise of inherent powers of this court u/s 561A. But in case it appears that the witness has been won over nad had gone back

on his sworn at the instance of the defense, the prosecution and would be well within right to cross examine him with the permission of the court to

illicit the truth. Even the court has ample powers u/s 165 of the Evidence Act to put any question to the witness. Finally it is the court which has to

appraise the testimony to hold and find out whether his earlier statement on oath or the affidavit command acceptance because under law, evidence

of even hostile witness is not shut out completely.

Therefore law on the point stands settled. The impugned order of the learned trial court cannot be sustained. It is therefore set aside and the

learned trial court is directed to recall PWs. Ram Rakhi and Asha Devi for further cross examination.

Petition allowed.