MehinderSingh Sullar, J.
Oral:
1. As identical points of law and facts are involved, therefore, I propose to dispose of above indicated three petitions for quashing the similar impugned orders (Annexure P10), by virtue of this common judgment, in order to avoid the repetition. However, the facts extracted from (1) CRM No.M-5449 of 2011 titled as “Mainpal @ Dhilla Vs. State of Haryana and Anr.” would be mentioned in subsequent part of this judgment for ready reference in this context.
2. The challenge in these petitions, is to the impugned order dated 31.1.2011 (Annexure P10), vide which, the application (Annexure P9) filed by the petitioners-accused for re-examining/re-summoning the witness under Section 311 Cr.PC was dismissed by the trial Court.
3. The contour of the facts and material, which needs a necessary mention, relevant for the limited purpose of deciding the core controversy, involved in the instant petitions and oozing out, from the record, is that six criminal cases were registered against the two cross sets of the accused, by means of FIRs (Annexures P1 to P6) for the commission of different offences indicated therein by the police of Police Station Sadar Bahadurgarh, District Jhajjar. During the pendency of above mentioned criminal cases, the panchayat of village Badli Khap Chaubisa was convened, in which, the matter was amicably settled between all the relevant parties, by way of panchayati compromise dated 12.12.2010 (Annexure P7). When the cases were at initial stage of prosecution evidence, the petitioners-accused moved applications for re-examining/re-summoning the witness, under Section 311 Cr.PC. The same were dismissed by the trial Court, through the medium of impugned order (Annexure P10).
4. The petitioners-accused did not feel satisfied and preferred the present petitions, for quashing the impugned order (Annexure P10), invoking the provisions of Section 482 Cr.PC.
5. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration over the entire matter, to my mind, the present petitions deserve to be accepted in this regard.
6. As is evident from the record, that when the cases were at initial stage of prosecution evidence, the petitioners-accused moved an application (Annexure P9) under Section 311 Cr.PC, which was dismissed by the trial court. As is clear from the impugned order that the main ground, which appears to have been weighed with the trial Court to dismiss the application, was that adequate opportunity to cross-examine was provided and defence counsel has cross examined the witness, now sought to be re-summoned. Here, to me, the trial court committed a legal error in this respect. Annexure P8 is the affidavit of the witness sought to be re-summoned, wherein it was stated that he had wrongly named the accused under mis-apprehension and suspicion. Now he came to know about the real facts and wants to tell the truth in the Court without any kind of pressure. Section 311 Cr.PC postulates that “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 reexamine 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.”
7. Keeping the categoric contents contained in the affidavit (Annexure P8) of the witness into focus, that he had wrongly named the accused under misapprehension and suspicion, now he came to know about the real facts and wants to tell the truth in the Court without any kind of pressure, to my mind, reexamination of the witness is essential to decide the real controversy between the parties. Not only that, the State of Haryana, in its reply, has inter-alia reiterated that keeping in view the public peace and tranquility in the village, the re-examination of the witness is required to effectively decide the matter between the parties. Meaning thereby, even the State (prosecution) has conceded the prayer of the petitioners-accused in this respect. Moreover, this matter is not res-integra and is now well settled.
8. An identical question came to be decided by a Coordinate Bench of this court (Harbans Lal, J. as his Lordship then was) in case Baljit and others v. State of Haryana and another 2009(2) RCR(Criminal) 178, wherein it was observed as under (paras 5 to 10):-
“5. Perhaps, this is for the first time in the judicial annals that the State without any reservation has prayed by filing reply before the learned trial Court as well as this Court that the application moved by the accused party under Section 311 of Cr.P.C be accepted. To shun further blood shed, carnage is the obvious reason for the State to make such prayer to the Courts. The intendment of law is to restore peace in the Society and to bring about harmony between the warring factions. The Courts have been constituted to administer justice to the public. If the rigours and rigidity of law are allowed to hold sway in the present case, admittedly, there is every possibility of there being further blood shed. In re: JamatrajKewalji Govani v. State of Maharashtra, AIR 1968 Supreme Court 178, while discussing the scope of Section 540 of the vintage Criminal Procedure Code as well as Section 165 of the Evidence Act, the Apex Court ruled that
“Chapter 21 of Cr.P.C does not restrict the powers of Criminal Court under Section 540. Section 540 of Criminal Procedure Code and Section 165 of Evidence Act, between them confer a wide discretion on the Court to act as the exigencies of justice require. 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 step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There is, however, the other aspect, namely, of the power of the Court, which is to be exercised to reach a just decision. This power is exercisable at any time.”
6. It is notable that Section 311 of the Code of Criminal Procedure, 1973 is the reincarnation of Section 540 of the old Code.
7. In the mandatory part of Section 311 ibid, the paramount consideration being the doing of justice to the case, the Court can and ought to examine witness at any stage (even when it proceeds to write judgment), whenever it considers the evidence essential. If it results in what is called, “feeling of loopholes”, i.e., purely subsidiary factor. Law confers a power in absolute terms to be exercised at any stage of the trial to examine a witness and makes this duty and obligation of the Court provided the just decision of the case demands it. The present one is such a case, wherein the learned trial Court seems to have adopted such a course which is fraught with the danger of defeating justice. The power under Section 311 of Cr.P.C is given to prevent miscarriage of justice. If the Court finds that the new evidence is essential to the just and proper decision of the case, it is obligatory to admit it at any stage of the proceeding, however, late. If valid reasons are made out, the Courts may allow any of the parties to call new evidence at any stage; or it may suo motu call any witness if it is considered essential in the interest of justice. The affidavits herein this case sought to be tendered may be deemed to be new evidence. When accused moves an application under Section 311 of Cr.P.C for recalling the witnesses, the same should be allowed, if accused wants to bring to the notice of the Court, the matter which can be said to be relevant for the purpose of deciding the case. Of course, rejection of application for recalling witnesses being interlocutory is not revisable, but in proper case order could be set aside under Article 227 of the Constitution of India. The present one being a proper case, the impugned order can be set aside in view of the said provision of law.
8. If the prayer is declined, the possibility of spiralling and stirring up hostility between both the parties cannot be ruled out. Admittedly, after the compromise between the parties, they have started going to the Courts in common vehicles and harmony between the two has been restored. If this petition is declined and the accused party is convicted and sentenced, again, the parties will be retrograded to the same position as they stood prior to the compromise brought about by 40 Gram Panchayats of various villages. The peculiar and piquant situation obtaining in the village has become a source of constant nuisance to the police as well as other authorities of the district administration. The real intention of law is to put an end to the longstanding enmity between the parties. The procedural prescriptions are the hand-maids of justice. Their motive is to advance the cause of justice and not to thwart the same. Concededly, after compromise between the parties, there has been no untoward incident between the parties. One feels that they have come to a peace and there has been forgetting and forgiving. In the words of Lord Hewart “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” It is such a novel case in which the propriety demands that the prayer of the petitioner should be accepted. In re: ZahiraHabibullah Sheikh and another v. State of Gujarat and others, 2006(2) Recent Criminal Reports (Criminal) 448 : 2006(1) Apex Criminal 649, the Apex Court has observed that Section 311 of the Code of Criminal Procedure is wholly discretionary.
9. It is common case of the parties that there are two rival factions in Village Jharot and since 2002 till date at least 7 persons have lost their lives and many persons have lost their limbs on account of receiving fire arm injuries and number of cases have been registered. The situation in the village after sunset is of curfew type. If such a situation is allowed to continue by disallowing this petition, the day is not far off, when the residents of this village under the surcharged atmosphere will get so much suffocated that either they will have to shift from this village or they may take any other drastic step. If the blood shed continued, most of them will lose their lives in murderous assaults. The agricultural activities and daily life has been severely affected. Admittedly, the murders have been committed despite the fact that police protection has been provided to both the factions. It clearly smacks of failure of the police to check this blood shed. To restore and maintain normalcy between the two warring factions, the legal impediments, if any, should not be allowed to come in the way. The legal bottle necks, if any, should not be given precedence over the preventive measures of further blood shed. If the situation is not repaired, the day will come, when most of the women-folk of this village would be rendered widows, the children would become motherless or fatherless or orphaned and the salutary step taken by host of the Panchayats by putting in earnest efforts would go in waste. Law is enacted for welfare of the society. Paramount consideration is to watch the societal interest. Here is not the case of pressuring the witnesses examined to withdraw from their own testimony. The object is to obviate any further bloodshed by giving effect to the compromise, which will become insignificant and a mere paper transaction, if this petition is not accepted.
10. To safeguard interest of both the parties apart from the other residents of the village, justice demands that this petition should be allowed. I order accordingly and set aside the order dated 6.5.2008 Annexure P.4 passed by the learned trial Court. The application moved under Section 311 of Cr.P.C by the petitioners is allowed with a direction to the learned trial Court to take the affidavits of the prosecution witnesses on record and to recall the desired witnesses for further cross-examination.”
9. The same view was earlier reiterated by this court in case Rattan v. State of Haryana 1998(1) RCR (Criminal) 640. Therefore, to me, the observations of this court in the aforesaid judgments “mutatis mutandis” are applicable to the facts of this case and are the complete answer to the problem in hand. Moreover, the learned counsel for the parties are idem that these petitions are liable to be accepted in view of ratio of law laid down in the indicated judgments.
10. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main cases, the instant petitions are accepted. Consequently, the impugned order (Annexure P10) is set aside. The trial court is directed to resummon the witness for re-examination.