Punjab-Haryana High Court
Darshna vs State Of Punjab And Others on 29 September, 2023
Neutral Citation No:=2023:PHHC:127288
CRR-787-2023 (O&M) 1
2023:PHHC:127288
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-787-2023 (O&M)
Reserved on : 21.08.2023
Pronounced on : 29.09.2023
Darshna ...... Petitioner
versus
State of Punjab and others ...... Respondents
CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Ms. Monita Mehta, Advocate
for the petitioner.
Mr. Kunal Vinayak, AAG, Punjab.
Mr. Jasmeet Singh Ghuman, Advocate
for respondents No.2 & 3.
****
PANKAJ JAIN, J. (Oral)
1. Present revision petition filed by the complainant is
directed against order dated 28.02.2023 passed by CJM, Jalandhar,
whereby the application filed by the complainant under Section 311
Cr.P.C. for recalling prosecution witness Rajinder Gaba, who appeared
as PW-5 stands declined.
2. The matter relates to an unfortunate dispute between son
and mother. On the complaint made by mother, the present FIR No.356
dated 20.12.2013, Police Station Sadar, District Jalandhar was
registered for offences punishable under Sections 307 and 452 against
respondents No.2 and 3. One of the cited witnesses namely Rajinder
Gaba, who happens to be brother of the complainant appeared as PW-5
on 06.01.2023 and was declared hostile on the request made by
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Additional Public Prosecutor. He was cross-examined by APP.
However, thereafter on 14.02.2023, application was moved under
Section 311 Cr.P.C. seeking recall of PW-5 Rajinder Gaba for further
examination. The said application stands rejected by the trial Court on
the ground that the explanation given by the complainant cannot be a
ground to recall the witness.
3. Counsel for the complainant while assailing the order
passed by the trial Court submits that the application has been
dismissed on flimsy ground without even recording satisfaction that
recalling of the witness was not required for the proper adjudication of
the controversy involved. It has been submitted that PW-5 is related to
both the parties and is thus material witness.
4. Per contra, counsel for the respondent submits that after
having been declared as hostile witness, PW-5 was cross examined at
length by APP and the trial Court thus rightly rejected the application
moved by the petitioner for recalling PW-5 whose re-examination is
being sought on the ground that he told the petitioner that he never
turned hostile and is still supporting the case of prosecution.
5. I have heard counsel for the parties and have gone through
the records of the case.
6. The broad principles regarding exercise of power as
contemplated under Section 311 Cr.P.C. for recalling witness have been
well spelled out by Apex Court in the case of Rajaram Prasad Yadav
vs. State of Bihar and another, reported as 2013(14) SCC 461 holding
as under:-
"xx xx xx
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23. From a conspectus consideration of the above
decisions, while dealing with an application under
Section 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 under Section 311
is noted by the Court for a just decision of a
case?
b) The exercise of the widest discretionary
power under Section 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 under Section 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.
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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
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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 under Section 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."
7. In the considered opinion of this Court, the trial Court
ought to have tested the prayer made by the complainant on the
touchstone of the aforesaid principles and should not have merely gone
by legality of the ground pleaded by the complainant.
8. In view of above, impugned order is set aside. Trial Court
is directed to decide the application filed by the petitioner-complainant
afresh in view of the principles laid down by Apex Court in Rajaram's
case (ibid) and formulate its opinion accordingly.
9. Resultantly, the present revision petition is allowed.
Impugned order dated 28.02.2023 is hereby quashed and trial Court is
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directed to decide the application filed by the petitioner-complainant
under Section 311 Cr.P.C. seeking recall of PW-5 Rajinder Gaba afresh
within a period of 15 days from the date of receipt of certified copy of
this order.
(PANKAJ JAIN)
JUDGE
29.09.2023
Dinesh
Whether speaking/reasoned : Yes
Whether Reportable : No
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