Ranjit Singh vs State of Punjab

Sabina, J.—This petition has been filed by the petitioner u/s 401 of the Code of Criminal Procedure, 1973 challenging order dated

11.6.2011 passed by the trial Court, whereby the application moved by the prosecution u/s 311 of the Code of Criminal Procedure, 1973

(Cr.P.C. for short) was allowed. Learned counsel for the petitioner has submitted that in the present case, entire prosecution evidence had been

recorded. Thereafter, statement of the petitioner u/s 313 Cr.P.C. was recorded. Petitioner examined some witnesses in his defence. Arguments

were heard by the trial Court on 19.5.2011 and the case was adjourned for orders. However, on 6.6.2011, an application was moved by the

prosecution for examining Assistant Chemical Examiner to prove the chemical report and MHC, Police Station Zira along with original record. The

said application had been moved with a view to fill up lacuna in the case. Trial Court had erred in allowing the said application.

Learned State counsel, on the other hand, has opposed the petition and has submitted that it was essential in the interest of justice to examine

the Assistant Chemical Examiner to prove the chemical report as certain details were missing in the report.

Section 311 Cr.P.C. 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 reexamine any such person if his evidence appears to it to be

essential to the just decision of the case.

Thus, as per the above provision, the Court at any stage of trial can summon any person as a witness or recall and reexamine any person

already examined if it is necessary for the just decision of the case.

It has been held by the Apex Court in Rajaram Prasad Yadav Vs. State of Bihar and Another, wherein, it was held as under:-

From a conspectus consideration of the above decisions, while dealing with an application u/s 311 Cr.P.C. read along with Section 138 of the

Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in u/s 311 is noted by the

Court for a just decision of a case?

b) The exercise of the widest discretionary power u/s 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate,

inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and

examine or recall and re-examine any such person.

d) The exercise of power u/s 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such

facts, which will lead to a just and correct decision of the case.

e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make

it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

f) The wide discretionary power should be exercised judiciously and not arbitrarily.

g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to

arrive at a just decision of the case.

h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without

it, but because there would be a failure of justice without such evidence being considered.

j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that

no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on

record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to

them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than

protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious

exercise of such a discretionary power, may lead to undesirable results.

l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also

ensure that an opportunity of rebuttal is given to the other party.

n) The power u/s 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and

the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused,

the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a

constitutional goal, as well as a human right.

In the present case, although, arguments were heard by the trial Court but the fact remains that due to some ambiguity in the report of the

chemical examiner, it was essential to examine the Assistant Chemical Examiner to prove the report. Due to this reason, it was necessary to

examine MHC, Police Station Zira to establish the fact that the sample had been deposited with the chemical examiner. Petitioner will get an

opportunity to cross-examine the said witnesses. In case the witnesses, now sought to be examined, are allowed to be examined by the

prosecution, it would enable the trial Court to dispose of the trial in a just and fair manner. In these circumstances, no ground for quashing of the

impugned order is made out. Accordingly, this petition is dismissed. However, the trial Court is directed to dispose of the trial expeditiously.