“7. from 07.06.2011 to 14.09.2011 as Many as 25 Vs. State of Haryana - Court Judgment

SooperKanoon Citationsooperkanoon.com/1130290
CourtPunjab and Haryana High Court
Decided OnFeb-24-2014
Appellant“7. from 07.06.2011 to 14.09.2011 as Many as 25
RespondentState of Haryana
Excerpt:
crm m- 6637 of 2014 1 in the high court of punjab and haryana, at chandigarh crm m- 6637 of 2014 date of decision: 24 .02. 2014 anil aka leela and others ....petitioners versus state of haryana ....respondent coram: hon’ble mr.justice mahavir s. chauhan. present: mr.a.s.virk, advocate, for the petitioners.---- • whether reporters of local papers may be allowed to see the judgment?. yes 2. to be referred to the reporter or not?. yes 3. whether the judgment should be reported in the digest?. yes mahavir s. chauhan, j. (oral) firs.information report (fir, for short) no.108 dated 06.04.2010 was recorded at police station, ganaur, under sections 148, 149, 302, 307, 216, 323 of the indian penal code, 1860 (ipc, for short) and sections 25 and 30 of the arms act, 1959 (arms act, for short) on the statement of pw rajesh kumar (since killed and trial regarding his murder is pending).on completion of investigation a report under section 173(2).criminal procedure code, 1973 (crpc, for short) was filed on 24.01.2011, arraigning krishan and anil aka leela (petitioners herein) and sonu as kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 2 accused. on commitment this case was titled as ‘state versus anil aka leela etc.’ on 08.03.2011 a supplementary report was submitted arraying vinod aka bintu (petitioner herein) as an accused. on commitment this case was titled as ‘state versus vinod aka bintu’. on 22.08.2011 yet another supplementary report was submitted naming jagat singh as an accused. on commitment this case was titled as ‘state versus jagat singh’. after 25 prosecution witnesses had been examined in case “state versus anil etc.”., vide order dated 15.09.2011 learned trial court ordered clubbing of the three cases. in the meantime, criminal miscellaneous no.m-28854 of 2011 was brought wherein proceedings before the learned trial court were stalled. this petition, however, was dismissed as withdrawn vide order 16.05.2012. learned trial court then framed charges afresh, and posted the case for prosecution evidence. on 11.12.2012 learned public prosecutor pointed out to the learned trial court that before case titled as “state versus jagat singh”. was clubbed with the earlier pending case, charges had already been framed against the accused therein and the prosecution had already examined 25 witnesses, including complainant rajesh (pw2) and eyewitness mukesh (pw7) and only two or three more witnesses remained to be examined and charges were framed afresh against all the accused after the afore- kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 3 mentioned criminal miscellaneos no.m-28854 of 2011, was dismissed as withdrawn by this court vide order 16.05.2012. learned trial court, finding the submission to be convincing and just, passed order dated 11.12.2012 ordering separation of the case ‘state versus jagat singh’. this order was assailed before this court by way of criminal revision no.155 of 2013, which, however, was dismissed as withdrawn vide order dated 17.01.2013 directing the learned sessions judge, sonepat “to see that the two trials are in the same court and are tried together”.incidentally, pw rajesh, the eye witness (who had been examined as pw2 in case titled “state versus anil etc.”.) was killed (allegedly by the present petitioners and a few others on 26.11.2011).pw mukesh, who had supported the prosecution story in case titled as “state versus anil etc.”. in his statement recorded on 14.07.2011 and 19.07.2011 and had lodged fir no.428 dated 26.11.2011 regarding murder of his brother rajesh, enacted a turn around and did not support the prosecution version in the case titled as “state versus jagat singh”.the petitioners (accused in case titled as “state versus anil etc.”.) then moved an application under section 311, crpc, with a prayer that afore-said pw mukesh be recalled for further cross-examination so as to enable them to confront him with his statement made by him in the case titled as “state versus jagat singh”.this application, however, has been dismissed by the learned trial court vide order dated 12.02.2014 (for short, the impugned kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 4 order).which is under attack in this petition brought by the accused in case titled as “state versus anil etc.”. under section 482, crpc. i have heard learned counsel for the petitioners.learned counsel representing the petitioners has very vigorously argued that the impugned order is liable to be set aside because it is contrary to the spirit of section 311, crpc, for, this provision gives ample power to the court to summon or recall any witness at any stage of the proceedings and in case evidence of any such witness appears to the court to be essential for just decision of the case, the provision casts a duty upon the court to summon and examine or recall and re-examine that witness. according to the learned counsel, recall and re-examination of pw mukesh is imperative as he has given a statement in the case “state versus jagat singh”. which runs contrary to his deposition given in case “state versus anil etc.”. and that being so, ends of justice require that he is called upon to clarify which of the two versions is correct because truth must prevail at all costs and ends of justice cannot be sacrificed on the altar of procedural technicalities. learned counsel appearing for the petitioners further contends that the learned trial court has wrongly relied upon mishrilal versus state of madhya pradesh, 2005(2) acr1744sc).2005(3) alt(cri) 41, 2005 (3) alt(cri) 41, jt20055) sc559 2005(4) mpht286 (2005)10 scc701 [2005].supp(1) scr259to hold that pw mukesh could not be kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 5 recalled and re-examined as there is no provision whereunder a witness can be confronted with a statement which was not in existence when he was initially examined as a witness, rather, to the contrary, in sudevanand versus state, through cbi, (2012).scc387 it has been held that mishri lal’s case did not interpret the scope of section 311, crpc. further, recall and re-examination of a witness cannot be dubbed as an effort to fill a lacuna in the case of a party as has been held in u.t.of dadra & nagar haveli and another versus fatehsinh mohansinh chauhan, 2006(7) scc529 contends the learned counsel arguing on behalf of the petitioners.nothing more has been argued. section 311, crpc, runs thus: “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 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.”. it is seen that section 311, crpc, empowers the court to summon a material witness, or to examine a person present at “any stage”. of “any enquiry”., or “trial”., or “any other proceedings”. under the code or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 6 to the arrival of a just decision of the case. undoubtedly, section 311, crpc, confers a very wide discretion upon the court in this respect, albeit, such discretion is to be exercised judiciously and not arbitrarily or capriciously, for, an improper or capricious exercise of this power may lead to undesirable results. an application under section 311, crpc, must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. the power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. the court is competent to exercise this power even suo motu where no application has been filed by either of the parties. only rider upon exercise of this power is that the court must satisfy itself that it is, in fact, essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. the scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. such a power must be exercised, provided that the evidence that is likely to be tendered by a witness is germane to the issue involved. an opportunity of rebuttal kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 7 however, must be given to the other party. the power conferred by section 311, crpc, 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 great caution and circumspection. the very use of words such as ‘any court’, ‘at any stage”., or ‘any enquiry, trial or other proceedings’, ‘any person’ and ‘any such person’ clearly spells out that the provisions of this section have been expressed in the widest possible terms.and do not limit the discretion of the court in any way. there is, thus, no escape if the fresh evidence to be obtained is essential to the just decision of the case. the determinative factor should therefore be, whether the summoning/recalling of a particular witness is in fact, essential to the just decision of the case. fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the parties concerned, and the same must be ensured as this is a constitutional, as well as a human right. thus, under no circumstances can a person’s right to fair trial be jeopardized. adducing evidence in support of the prosecution and defence versions is a valuable right. denial of such right would amount to the denial of a fair trial. thus, it is essential that the rules of procedure that have been designed to ensure justice are kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 8 scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. in mohanlal shamji soni v. union of india & anr., air1991sc1346 the hon’ble supreme court examined the scope of section 311 of the code and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue. however, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. the court has a duty to determine the truth, and to render a just decision. the same is also the object of section 311 of the code where-under the court may exercise its discretion at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re-examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. it is therefore clear that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 9 the examination of any person which would depend on the facts and circumstances of each case. in rajeswar prasad misr.v. the state of west bengal & anr., air1965sc1887 the hon’ble supreme court, while dealing with the amplitude of power and jurisdiction vested in the court with respect to taking additional evidence, observed that it may not be possible for the legislature to foresee all situations and possibilities and therefore, the court must examine the facts and circumstances of each case before it, and if it comes to 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, and if such an action on its part is justified, then the court must exercise such power. "a judge does not preside over a criminal trial, merely to see that no innocent man is punished. a judge also presides to see that a guilty man does not escape. both are public duties which the judge has to perform."(per viscount simon in stirland v. director of public prosecution (1944 ac (pc) 315).to put it straight, it is the bounden duty of the court to ensure that justice is done to the accused, the victim and the society at large. court can ill afford to act to the advantage one party to the litigation at the cost of the other. pw mukesh, as aforesaid, supported the prosecution story, through and through, while making a statement on kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 10 14.07.2011 and 19.07.2011 in the case “state versus anil etc.”. but according to the application made by the petitioner for recalling and re- examining him, he is shown to have stated in his statement recorded on 27.08.2013 in case “state versus jagat singh”. that the statement made by him on 14.07.2011 and 19.07.2011 in the case “state versus anil etc.”. was made by him under pressure of the police as police had coerced him to make that statement. the petitioners.by recalling and re-examining him, want to confront him with this statement. however, this is not permissible in law. once the witness was examined in-chief and cross-examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given before the court, even though that witness has given an inconsistent statement before any other court or forum subsequently. a witness can be confronted only with a previous statement made by him. chapter x in the indian evidence act, 1872 (for short, the evidence act) deals with the manner of examination of witnesses. section 145 of the evidence act permits cross-examination of a witness as to previous statements made by him in writing or reduced into writing and section 157 of the evidence act permits proof of any former statement made by a witness relating to the same fact, at or about the time when the fact took place, to corroborate testimony of that witness. there is no provision in the evidence act permitting cross examination of a witness as to a statement of that witness made subsequent to his statement in a particular case or trial. kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 11 further, the learned trial court, while dismissing the application for additional evidence noted as under: “7. from 07.06.2011 to 14.09.2011 as many as 25 witnesses were examined by prosecution and thereafter trial could not proceed in view of transfer application preferred by accused which was subsequently withdrawn in view of supplementary challan against accused jagat singh. in the meanwhile on 26.11.2011 complainant rajesh (pw2) was also killed by causing firearm injuries and trial of said occurrence is pending before the court of undersigned in case titled state versus vinod and others wherein accused vinod, krishan and anil alongwith others are facing trial. 8. from 19.07.2011 to 27.08.2013 when statement of mukesh (pw7 in present case and pw3 in case titled as state versus jagat) in case titled as state versus jagat was recorded till then no complaint or objection was taken regarding police pressure by pw7. ld. counsel for accused relying upon statement dated 27.08.2013 made by mukesh had asserted that his earlier statement was tutored one under police pressure is now seeking to re- examine mukesh pw7 in present case. the question is whether merely because a pw has resiled from his previous statement subsequently is it sufficient to justify his recall subsequently in changed circumstances.”. learned trial court then sought support for the view taken by it, from mishrilal versus state of madhya pradesh (supra) wherein pw2mokam singh was examined by the sessions judge on 06.02.1991 and cross-examined on the same day by the defence counsel. thereafter, it seems.on behalf of the accused persons an application was filed and pw2mokam singh was recalled and was again examined and cross- examined on 31.07.1991. some of the persons who were allegedly involved in the incident were minors and their case was tried by the kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 12 juvenile court. pw2mokam singh was also examined as a witness in the case before the juvenile court. in the juvenile court, he gave evidence to the effect that he was not aware of the persons who had attacked him and on hearing the voice of the assailants, he had assumed that they were some banjaras. upon recalling, pw-2 mokam singh was confronted with the evidence he had given later before the juvenile court on the basis of which the accused persons were acquitted of the charge under section 307, ipc, for having made an attempt on the life of this witness. the hon’ble supreme court, however, observed as under: “6. in our opinion, the procedure adopted by the sessions judge was not strictly in accordance with law. once the witness was examined in-chief and cross- examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. a witness could be confronted only with a previous statement made by him. at the time of examination of pw2mokam singh on 6.2.1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. this witness must have given some other version before the juvenile court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. the courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or some other reason. whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses.”. kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 13 learned counsel for the petitioners has attempted to demonstrate that this judgment did not find favour with the hon’ble apex court in the case of sudevanand versus state, through cbi(supra).however, in this judgment hon’ble supreme court has not disapproved of the judgment in mishrilal’s case (supra).rather, the hon’ble apex court noted that facts in the case of sudevanand (supra) were quite different from those of mishrilal (supra) and observed as under: “24. at firs.sight, the decisions in mishrilal and hanuman ram seem to clinch the issue arising in the case. but, on a deeper examination, it would appear that the decision in mishrilal did not interpret section 311 code of criminal procedure. defining the import, scope and ambit of the provision contained therein. it rather said that on the facts of the case, the provision had no application and the procedure adopted by the trial court was not strictly in accordance with law. now, the interpretation of a legal provision and its application to a set of facts are two different exercises requiring different approaches. 'interpretation' means the action of explaining the meaning of something. for interpreting a statutory provision, the court is required to have an insight into the provision and unfold its meaning by means of the well-established canons of interpretation, having regard to the object, purpose, historicism of the law and several other well-known factors.but, what is important to bear in mind is that the interpretation of a legal provision is always independent of the facts of any given case. 'application' means the practical use or relevance (of something to something).the application of a statutory provision, therefore, is by definition case related and as opposed to interpretation, the application or non-application of a statutory provision would always depend on the exact facts of a given case. anyone associated with the process of adjudication fully knows that even the slightest difference in the facts of two cases can make a world kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 14 of difference on the question whether or not a statutory provision can be fairly and reasonably applied to it. keeping in mind what is said here if we read mishrilal, it would be evident that in the over all facts of that case, the court was satisfied that the statement of the witness (pw.2, mokam singh) before the juvenile court was for some extraneous reasons and, therefore, he should not have been allowed an opportunity to completely efface the evidence already given by him under oath. the court with its vast experience of the way criminal justice system works in our country was in a manner commenting upon the serious and widespread malady of prosecution witness being won over by the accused. once the court came to realise that the witness was gained over before he was examined in the juvenile court, it naturally felt that at least he should not have been allowed to spoil the other case too and it would, therefore, logically follow that his recall and re-examination in the trial of the other accused before the sessions court was an abuse of section 311 of the code of criminal procedure. to us, it appears that it was mainly due to that reason that the court frowned upon the latter evidence of pw.2 taken by the sessions court on his recall after his examination before the juvenile court. 25. moreover, in mishrilal the question that came up for consideration before the court was whether the deposition of mokam singh (pw.2) before the juvenile court would come within the meaning of 'previous statement' under section 145 of the evidence act so as to justify his recall for further cross-examination confronting him with his deposition before the juvenile court. the court answered the question in the negative pointing out that at the time of his examination earlier before the sessions court there was no such statement with which he could be confronted by the defence.”. (emphasis added) it needs to be highlighted that vinod, krishan and anil, who are facing trial for the murder of pw rajesh, are none else but petitioners herein and accused in case “state versus anil etc.”., fir wherein was recorded on the kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 15 statement of that pw rajesh. fir no.428 dated 26.11.2011 in respect of killing of pw rajesh was lodged by pw mukesh. learned trial court has also noted in the impugned order that: “in present case pw7 mukesh kumar was not examined on one date but was examined on two different dates. on 14.07.2011 his examination in chief and cross examination was recorded partially and on 19.07.2011 his cross examination had concluded. perusal of both the statements goes to show that both were made and recorded in detail. the examination in chief runs in as many as five pages. pw mukesh was duly cross examined partly on 14.07.2011 by ld. counsel for accused running into two pages and again on 19.07.2011 cross examination was conducted running in six pages. the cross examination was also recorded in question and answer form. the evidence of pw mukesh kumar therefore goes to show that the same is detailed one and due opportunity was availed by accused side for conducting cross examination of pw7 mukesh kumar. from the statement recorded 14.07.2011 and on 19.07.2011 no police pressure is evident. in present case complainant was duly represented through counsel and the trial before murder of complainant rajesh kumar on 26.11.2011 was being contested hotly on behalf of complainant as is evident from court record. the change of stance by pw7 mukesh kumar has resulted after killing of his brother complainant of present case rajesh in occurrence dated 26.11.2011. it is also not in dispute that pw mukesh kumar was the complainant in fir no.428 dated 26.11.2011 wherein three of the accused persons in present case are facing trial. pw mukesh kumar has duly admitted his signatures on various complaint, memoes, etc.and at no time he had lodged any complaint against the police before his statement on 27.08.2013 recorded in case titled as state versus jagat singh. the plea of pressure taken subsequently after two years seems to be effect of killing of rajesh on 26.11.2011 by firearm injuries.”. (emphasis added) kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh crm m- 6637 of 2014 16 the fact that pw mukesh has taken a turn around only after his brother rajesh was killed allegedly by three of the petitioners and a few others which resulted into registration of fir no.428 dated 26.11.2011, needs no elaboration as the circumstance speaks volumes as regards the reason for such a somersault by pw mukesh. the circumstances emanating from the impugned order, in my humble opinion, are sufficient to infer that allowing the application of the petitioners for recalling and re examining pw mukesh and thereby demolishing what was stated by him on oath on 14.07.2011 and on 19.07.2011, would not have furthered ends of justice in any manner. therefore, learned trial court has rightly dismissed the application. resultantly, the petition fails and is dismissed in limine. 24.02.2014 [mahavir s. chauhan].sd. judge kumar sudhir s201403.03 15:08 i attest to the accuracy and integrity of this document chandigarh
Judgment:

CRM M- 6637 of 2014 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, AT CHANDIGARH CRM M- 6637 of 2014 Date of Decision: 24 .02.

2014 Anil aka Leela and others ....Petitioners Versus State of Haryana ....Respondent CORAM: HON’BLE Mr.JUSTICE MAHAVIR S.

CHAUHAN.

Present: Mr.A.S.Virk, Advocate, for the petitioneRs.---- • Whether Reporters of local papers may be allowed to see the judgment?.

Yes 2.

To be referred to the Reporter or not?.

Yes 3.

Whether the judgment should be reported in the Digest?.

Yes Mahavir S.

Chauhan, J.

(ORAL) FiRs.Information Report (FIR, for short) No.108 dated 06.04.2010 was recorded at Police Station, Ganaur, under Sections 148, 149, 302, 307, 216, 323 of the Indian Penal Code, 1860 (IPC, for short) and Sections 25 and 30 of the Arms Act, 1959 (Arms Act, for short) on the statement of PW Rajesh Kumar (since killed and trial regarding his murder is pending).On completion of investigation a report under Section 173(2).Criminal Procedure Code, 1973 (CrPC, for short) was filed on 24.01.2011, arraigning Krishan and Anil aka Leela (Petitioners herein) and Sonu as Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 2 accused.

On commitment this case was titled as ‘State versus Anil aka Leela etc.’ On 08.03.2011 a supplementary report was submitted arraying Vinod aka Bintu (petitioner herein) as an accused.

On commitment this case was titled as ‘State versus Vinod aka Bintu’.

On 22.08.2011 yet another supplementary report was submitted naming Jagat Singh as an accused.

On commitment this case was titled as ‘State versus Jagat Singh’.

After 25 prosecution witnesses had been examined in case “State versus Anil etc.”

., vide order dated 15.09.2011 learned trial court ordered clubbing of the three cases.

In the meantime, Criminal Miscellaneous No.M-28854 of 2011 was brought wherein proceedings before the learned trial court were stalled.

This petition, however, was dismissed as withdrawn vide order 16.05.2012.

Learned trial court then framed charges afresh, and posted the case for prosecution evidence.

On 11.12.2012 learned Public Prosecutor pointed out to the learned trial court that before case titled as “State versus Jagat Singh”.

was clubbed with the earlier pending case, charges had already been framed against the accused therein and the prosecution had already examined 25 witnesses, including complainant Rajesh (PW2) and eyewitness Mukesh (PW7) and only two or three more witnesses remained to be examined and charges were framed afresh against all the accused after the afore- Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 3 mentioned Criminal Miscellaneos No.M-28854 of 2011, was dismissed as withdrawn by this court vide order 16.05.2012.

Learned trial court, finding the submission to be convincing and just, passed order dated 11.12.2012 ordering separation of the case ‘State versus Jagat Singh’.

This order was assailed before this court by way of Criminal Revision No.155 of 2013, which, however, was dismissed as withdrawn vide order dated 17.01.2013 directing the learned Sessions Judge, Sonepat “to see that the two trials are in the same court and are tried together”.Incidentally, PW Rajesh, the eye witness (who had been examined as PW2 in case titled “State versus Anil etc.”

.) was killed (allegedly by the present petitioners and a few others on 26.11.2011).PW Mukesh, who had supported the prosecution story in case titled as “State versus Anil etc.”

.

in his statement recorded on 14.07.2011 and 19.07.2011 and had lodged FIR No.428 dated 26.11.2011 regarding murder of his brother Rajesh, enacted a turn around and did not support the prosecution version in the case titled as “State versus Jagat Singh”.The petitioners (accused in case titled as “State versus Anil etc.”

.) then moved an application under Section 311, CrPC, with a prayer that afore-said PW Mukesh be recalled for further cross-examination so as to enable them to confront him with his statement made by him in the case titled as “State versus Jagat Singh”.This application, however, has been dismissed by the learned trial court vide order dated 12.02.2014 (for short, the impugned Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 4 order).which is under attack in this petition brought by the accused in case titled as “State versus Anil etc.”

.

under Section 482, CrPC.

I have heard learned counsel for the petitioneRs.Learned counsel representing the petitioners has very vigorously argued that the impugned order is liable to be set aside because it is contrary to the spirit of Section 311, CrPC, for, this provision gives ample power to the court to summon or recall any witness at any stage of the proceedings and in case evidence of any such witness appears to the court to be essential for just decision of the case, the provision casts a duty upon the court to summon and examine or recall and re-examine that witness.

According to the learned counsel, recall and re-examination of PW Mukesh is imperative as he has given a statement in the case “State versus Jagat Singh”.

which runs contrary to his deposition given in case “State versus Anil etc.”

.

and that being so, ends of justice require that he is called upon to clarify which of the two versions is correct because truth must prevail at all costs and ends of justice cannot be sacrificed on the altar of procedural technicalities.

Learned counsel appearing for the petitioners further contends that the learned trial court has wrongly relied upon Mishrilal versus State of Madhya Pradesh, 2005(2) ACR1744SC).2005(3) ALT(Cri) 41, 2005 (3) ALT(Cri) 41, JT20055) SC559 2005(4) MPHT286 (2005)10 SCC701 [2005].Supp(1) SCR259to hold that PW Mukesh could not be Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 5 recalled and re-examined as there is no provision whereunder a witness can be confronted with a statement which was not in existence when he was initially examined as a witness, rather, to the contrary, in Sudevanand versus State, through CBI, (2012).SCC387 it has been held that Mishri Lal’s case did not interpret the scope of Section 311, CrPC.

Further, recall and re-examination of a witness cannot be dubbed as an effort to fill a lacuna in the case of a party as has been held in U.T.of Dadra & Nagar Haveli and another versus Fatehsinh Mohansinh Chauhan, 2006(7) SCC529 contends the learned counsel arguing on behalf of the petitioneRs.Nothing more has been argued.

Section 311, CrPC, runs thus: “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 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.”

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It is seen that Section 311, CrPC, empowers the court to summon a material witness, or to examine a person present at “any stage”.

of “any enquiry”., or “trial”., or “any other proceedings”.

under the Code or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 6 to the arrival of a just decision of the case.

Undoubtedly, Section 311, CrPC, confers a very wide discretion upon the court in this respect, albeit, such discretion is to be exercised judiciously and not arbitrarily or capriciously, for, an improper or capricious exercise of this power may lead to undesirable results.

An application under Section 311, CrPC, must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party.

Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties.

The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings.

The court is competent to exercise this power even suo motu where no application has been filed by either of the parties.

Only rider upon exercise of this power is that the court must satisfy itself that it is, in fact, essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case.

Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness is germane to the issue involved.

An opportunity of rebuttal Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 7 however, must be given to the other party.

The power conferred by Section 311, CrPC, 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 great caution and circumspection.

The very use of words such as ‘any Court’, ‘at any stage”., or ‘any enquiry, trial or other proceedings’, ‘any person’ and ‘any such person’ clearly spells out that the provisions of this Section have been expressed in the widest possible terMs.and do not limit the discretion of the Court in any way.

There is, thus, no escape if the fresh evidence to be obtained is essential to the just decision of the case.

The determinative factor should therefore be, whether the summoning/recalling of a particular witness is in fact, essential to the just decision of the case.

Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner.

Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the parties concerned, and the same must be ensured as this is a constitutional, as well as a human right.

Thus, under no circumstances can a person’s right to fair trial be jeopardized.

Adducing evidence in support of the prosecution and defence versions is a valuable right.

Denial of such right would amount to the denial of a fair trial.

Thus, it is essential that the rules of procedure that have been designed to ensure justice are Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 8 scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same.

In Mohanlal Shamji Soni v.

Union of India & Anr., AIR1991SC1346 the Hon’ble Supreme Court examined the scope of Section 311 of the Code and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue.

However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done.

The court has a duty to determine the truth, and to render a just decision.

The same is also the object of Section 311 of the Code where-under the court may exercise its discretion at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re-examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 9 the examination of any person which would depend on the facts and circumstances of each case.

In Rajeswar Prasad MiSr.v.

The State of West Bengal & Anr., AIR1965SC1887 the Hon’ble Supreme Court, while dealing with the amplitude of power and jurisdiction vested in the court with respect to taking additional evidence, observed that it may not be possible for the legislature to foresee all situations and possibilities and therefore, the court must examine the facts and circumstances of each case before it, and if it comes to 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, and if such an action on its part is justified, then the court must exercise such power.

"A judge does not preside over a criminal trial, merely to see that no innocent man is punished.

A judge also presides to see that a guilty man does not escape.

Both are public duties which the Judge has to perform."

(Per Viscount Simon in Stirland v.

Director of Public Prosecution (1944 AC (PC) 315).To put it straight, it is the bounden duty of the court to ensure that justice is done to the accused, the victim and the society at large.

Court can ill afford to act to the advantage one party to the litigation at the cost of the other.

PW Mukesh, as aforesaid, supported the prosecution story, through and through, while making a statement on Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 10 14.07.2011 and 19.07.2011 in the case “State versus Anil etc.”

.

but according to the application made by the petitioner for recalling and re- examining him, he is shown to have stated in his statement recorded on 27.08.2013 in case “State versus Jagat Singh”.

that the statement made by him on 14.07.2011 and 19.07.2011 in the case “State versus Anil etc.”

.

was made by him under pressure of the police as police had coerced him to make that statement.

The petitioneRs.by recalling and re-examining him, want to confront him with this statement.

However, this is not permissible in law.

Once the witness was examined in-chief and cross-examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given before the court, even though that witness has given an inconsistent statement before any other court or forum subsequently.

A witness can be confronted only with a previous statement made by him.

Chapter X in the Indian Evidence Act, 1872 (for short, the Evidence Act) deals with the manner of examination of witnesses.

Section 145 of the Evidence Act permits cross-examination of a witness as to previous statements made by him in writing or reduced into writing and Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact, at or about the time when the fact took place, to corroborate testimony of that witness.

There is no provision in the Evidence Act permitting cross examination of a witness as to a statement of that witness made subsequent to his statement in a particular case or trial.

Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 11 Further, the learned trial court, while dismissing the application for additional evidence noted as under: “7.

From 07.06.2011 to 14.09.2011 as many as 25 witnesses were examined by prosecution and thereafter trial could not proceed in view of transfer application preferred by accused which was subsequently withdrawn in view of supplementary challan against accused Jagat Singh.

In the meanwhile on 26.11.2011 complainant Rajesh (PW2) was also killed by causing firearm injuries and trial of said occurrence is pending before the court of undersigned in case titled State versus Vinod and others wherein accused Vinod, Krishan and Anil alongwith others are facing trial.

8.

From 19.07.2011 to 27.08.2013 when statement of Mukesh (PW7 in present case and PW3 in case titled as State versus Jagat) in case titled as State versus Jagat was recorded till then no complaint or objection was taken regarding police pressure by PW7.

Ld.

counsel for accused relying upon statement dated 27.08.2013 made by Mukesh had asserted that his earlier statement was tutored one under police pressure is now seeking to re- examine Mukesh PW7 in present case.

The question is whether merely because a PW has resiled from his previous statement subsequently is it sufficient to justify his recall subsequently in changed circumstances.”

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Learned trial court then sought support for the view taken by it, from Mishrilal versus State of Madhya Pradesh (supra) wherein PW2Mokam Singh was examined by the Sessions Judge on 06.02.1991 and cross-examined on the same day by the defence counsel.

Thereafter, it seeMs.on behalf of the accused persons an application was filed and PW2Mokam Singh was recalled and was again examined and cross- examined on 31.07.1991.

Some of the persons who were allegedly involved in the incident were minors and their case was tried by the Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 12 Juvenile Court.

PW2Mokam Singh was also examined as a witness in the case before the Juvenile court.

In the Juvenile Court, he gave evidence to the effect that he was not aware of the persons who had attacked him and on hearing the voice of the assailants, he had assumed that they were some Banjaras.

Upon recalling, PW-2 Mokam Singh was confronted with the evidence he had given later before the Juvenile Court on the basis of which the accused persons were acquitted of the charge under Section 307, IPC, for having made an attempt on the life of this witness.

The Hon’ble Supreme Court, however, observed as under: “6.

In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law.

Once the witness was examined in-chief and cross- examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently.

A witness could be confronted only with a previous statement made by him.

At the time of examination of PW2Mokam Singh on 6.2.1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously.

This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath.

The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or some other reason.

Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses.”

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Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 13 Learned counsel for the petitioners has attempted to demonstrate that this judgment did not find favour with the Hon’ble Apex Court in the case of Sudevanand versus State, through CBI(supra).However, in this judgment Hon’ble Supreme Court has not disapproved of the judgment in Mishrilal’s case (supra).Rather, the Hon’ble Apex Court noted that facts in the case of Sudevanand (supra) were quite different from those of Mishrilal (supra) and observed as under: “24.

At fiRs.sight, the decisions in Mishrilal and Hanuman Ram seem to clinch the issue arising in the case.

But, on a deeper examination, it would appear that the decision in Mishrilal did not interpret Section 311 Code of Criminal Procedure.

defining the import, scope and ambit of the provision contained therein.

It rather said that on the facts of the case, the provision had no application and the procedure adopted by the trial court was not strictly in accordance with law.

Now, the interpretation of a legal provision and its application to a set of facts are two different exercises requiring different approaches.

'Interpretation' means the action of explaining the meaning of something.

For interpreting a statutory provision, the court is required to have an insight into the provision and unfold its meaning by means of the well-established canons of interpretation, having regard to the object, purpose, historicism of the law and several other well-known factORS.But, what is important to bear in mind is that the interpretation of a legal provision is always independent of the facts of any given case.

'Application' means the practical use or relevance (of something to something).the application of a statutory provision, therefore, is by definition case related and as opposed to interpretation, the application or non-application of a statutory provision would always depend on the exact facts of a given case.

Anyone associated with the process of adjudication fully knows that even the slightest difference in the facts of two cases can make a world Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 14 of difference on the question whether or not a statutory provision can be fairly and reasonably applied to it.

Keeping in mind what is said here if we read Mishrilal, it would be evident that in the over all facts of that case, the Court was satisfied that the statement of the witness (PW.2, Mokam Singh) before the Juvenile Court was for some extraneous reasons and, therefore, he should not have been allowed an opportunity to completely efface the evidence already given by him under oath.

The Court with its vast experience of the way criminal justice system works in our country was in a manner commenting upon the serious and widespread malady of prosecution witness being won over by the accused.

Once the Court came to realise that the witness was gained over before he was examined in the Juvenile Court, it naturally felt that at least he should not have been allowed to spoil the other case too and it would, therefore, logically follow that his recall and re-examination in the trial of the other accused before the Sessions Court was an abuse of Section 311 of the Code of Criminal Procedure.

To us, it appears that it was mainly due to that reason that the Court frowned upon the latter evidence of PW.2 taken by the Sessions Court on his recall after his examination before the Juvenile Court.

25.

Moreover, in Mishrilal the question that came up for consideration before the Court was whether the deposition of Mokam Singh (PW.2) before the Juvenile Court would come within the meaning of 'previous statement' under Section 145 of the Evidence Act so as to justify his recall for further cross-examination confronting him with his deposition before the Juvenile Court.

The Court answered the question in the negative pointing out that at the time of his examination earlier before the Sessions Court there was no such statement with which he could be confronted by the defence.”

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(Emphasis added) It needs to be highlighted that Vinod, Krishan and Anil, who are facing trial for the murder of PW Rajesh, are none else but petitioners herein and accused in case “State versus Anil etc.”

., FIR wherein was recorded on the Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 15 statement of that PW Rajesh.

FIR No.428 dated 26.11.2011 in respect of killing of PW Rajesh was lodged by PW Mukesh.

Learned trial court has also noted in the impugned order that: “In present case PW7 Mukesh Kumar was not examined on one date but was examined on two different dates.

On 14.07.2011 his examination in chief and cross examination was recorded partially and on 19.07.2011 his cross examination had concluded.

Perusal of both the statements goes to show that both were made and recorded in detail.

The examination in chief runs in as many as five pages.

PW Mukesh was duly cross examined partly on 14.07.2011 by ld.

counsel for accused running into two pages and again on 19.07.2011 cross examination was conducted running in six pages.

The cross examination was also recorded in question and answer form.

The evidence of PW Mukesh Kumar therefore goes to show that the same is detailed one and due opportunity was availed by accused side for conducting cross examination of PW7 Mukesh Kumar.

From the statement recorded 14.07.2011 and on 19.07.2011 no police pressure is evident.

In present case complainant was duly represented through counsel and the trial before murder of complainant Rajesh kumar on 26.11.2011 was being contested hotly on behalf of complainant as is evident from court record.

The change of stance by PW7 Mukesh Kumar has resulted after killing of his brother complainant of present case Rajesh in occurrence dated 26.11.2011.

It is also not in dispute that PW Mukesh Kumar was the complainant in FIR No.428 dated 26.11.2011 wherein three of the accused persons in present case are facing trial.

PW Mukesh Kumar has duly admitted his signatures on various complaint, memoes, etc.and at no time he had lodged any complaint against the police before his statement on 27.08.2013 recorded in case titled as State versus Jagat Singh.

The plea of pressure taken subsequently after two years seems to be effect of killing of Rajesh on 26.11.2011 by firearm injuries.”

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(Emphasis added) Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh CRM M- 6637 of 2014 16 The fact that PW Mukesh has taken a turn around only after his brother Rajesh was killed allegedly by three of the petitioners and a few others which resulted into registration of FIR No.428 dated 26.11.2011, needs no elaboration as the circumstance speaks volumes as regards the reason for such a somersault by PW Mukesh.

The circumstances emanating from the impugned order, in my humble opinion, are sufficient to infer that allowing the application of the petitioners for recalling and re examining PW Mukesh and thereby demolishing what was stated by him on oath on 14.07.2011 and on 19.07.2011, would not have furthered ends of justice in any manner.

Therefore, learned trial court has rightly dismissed the application.

Resultantly, the petition fails and is dismissed in limine.

24.02.2014 [Mahavir S.

Chauhan].sd.

Judge Kumar Sudhir S201403.03 15:08 I attest to the accuracy and integrity of this document chandigarh