Shamsher Singh vs State of Haryana

V.S. Aggarwal, J.

Petitioners Shamsher Singh and Darshan Singh are facing trial in the Court of Additional Sessions Judge, Kaithal with respect to an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. During the course of trial, the prosecution examined four witnesses. Some of the witnesses were given up. The prosecution closed its evidence. The statements of the accusedpetitioners were recorded and it was listed for defence evidence. The defence evidence has not been closed. At that stage, on behalf of the State an application was filed to examine ASI Manohar Lal and DSP Ram Singh on the ground that due to indevertance ASI Manohar had been given up as unnecessary and DSP Ram Singh was not examined. The learned Additional Sessions Judge on 17.1.1995 passed the following order:

"An application for summoning of ASI Manohar Lal and DSP Ram Singh witnesses filed. It is alleged that they were given up in advertently and their evidence is essential for just decision of the case. Learned defence counsel has vehemently opposed it. As the evidence of DSP Ram Singh and ASI Manohal Lal witnesses of recovery are very essential for just decision of the case, so in the interest of justice application is allowed. PWs Ram Singh DSP and ASI Manohar Lal be summoned for 13.3.1995."

Aggrieved by the said order, the present revision petition has been filed.

Learned counsel for the petitioners argued to the effect that at this stage, the prosecution cannot be allowed to fill up the lacuna in the evidence. The trial had almost come to an end and, therefore, there was no ground to permit recording of the additional evidence.

Reliance on behalf of the petitioner was placed on the decision of this court in the case of Bachan Singh v. State of Punjab, 1981 C.L.R. 369. In the cited case during the trial with respect to the offence punishable under Section 9 of the Opium Act, the prosecution evidence was closed and the defence evidence had commenced. The prosecution submitted an application to examine certain witnesses whose affidavits had been tendered. The application had been allowed by the trial court. The accused filed a criminal revision petition. It was allowed holding that lacunas in evidence cannot be allowed to be filled up. In the cited case the position is confined to its peculiar facts. It was not the ratio decidendi of the decision that in no case such an application can be allowed.

Section 311 of the Code of Criminal Procedure reads:

"311. 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 parson 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."

Perusal of this provision shows that a judicial discretion has been confered on the concerned court to summon material witnesses or examine persons present in court. It is in two parts. If the evidence of a witness appears to be essential to the just decision of the case, then the Court is bound to examine and recall the said witnesses. The other part of Section 311 Cr.P.C. is not mandatory and it only permits the court to resummon and examine any witness during the course of trial or enquiry. He may not have been summoned earlier.

In the present case, the learned trial court permitted examination of both the witnesses holding that it is essential and for just decision of the case to do so. When it is felt that statement of a witness is necessary for just decision of the case, it was mandatory to recall the said witnesses. The Court in these circumstances rightly exercised the discretion and allowed the two witnesses to be examined. There is no ground, thus, to interfere in the impugned order.

For the reasons, the petition being without merit fails and is dismissed.