VIRENDER SINGH Vs. STATE

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure (Code for short) has been filed for quashing an order dated 27.1.1992 by the learned Additional Sessions Judge by which he declined the prayer of the petitioners for recalling Public Witness -6 for further cross-examination and examining another witness in defence by the accused petitioners.

(2.) The brief facts of the case are that on 20.1.92 petitioners who are facing prosecution under Section 302 read with Section 34 Indian Penal Code in FIR No. 457/83 registered in PS Karol Bagh moved an application for recalling Public Witness -6 Manjit Singh and also for examination of one Parveen Dua of Dua Tea Stall, Naiwala Street, Karol Bagh as a defence witness. It was stated in this application that the prosecution had taken about 9 years to complete its evidence of 20 witnesses only in which there was only one eye witness and the remaining witnesses were formal in nature. The plea of the petitioners had been that they were innocent and falsely implicated due to past enmity and that the deceased was a dreaded criminal having wide spread enemies in the under-world of bullies and criminals and that it was a blind murder. Manjit Singh examined as Public Witness -6 by the prosecution was falsely set up as an eye witness whose presence was a manipulated chance and he had been going around and giving various versions and reasons for deposing underpressure of police and the criminal associates of the deceased and his criminal father and accomplices which had also been tape-recorded and had to be played in Court. They wanted to confront Public Witness -6 with that version to prove that he was a false witness. The petitioner further stated that before his examination, the tape and its transcrip will be filed in Court. The police was alleged to have drafted innocent persons as accused by gaining time. changing place of occurrence, procuring false witnesses, taking and suppressing evidence. Therefore, the petitioners desired that they should also be allowed to examine Parveen Dua of Dua Tea Stall as a defence witness. This application, however, was dis-allowed by the learned ASJ.

(3.) I have heard arguments advanced by learned counsel for the parties and have also perused the record of the trial court. It may be noted in this case that previously the petitioners were being represented by Sh. O.P.Soni, Advocate. The prosecution evidence was closed by statement of the APP on 9.4.91. Thereafter the statements of the accused persons could be recorded only on 6.1.92 and in the period in between either one of the accused was absent from the proceedings or the lawyers were on strike. They then examined Sh. R.S. Mahia, Metropolitan Magistrate as DW-1 on 9.1.92 and on that very day they made a statement closing the defence evidence. In the background of the above circumstances we have now to see whether the petitioners should be allowed to recall Public Witness -6 Manjit Singh for futher cross-examination and also examine Parveen Dua in their defence. Section 311 of the Code says that, "Any Court may, at any stage of any inquiry, <PG>22</PG> trial of 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 or 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." This section came for interpretation before this Court in the case of State (Delhi Admn.) Vs. Ramesh @ Ramesh Kumar 1990(1) C.C.Cases 444. The Court examined the law laid down in two Supreme Court rulings, namely, Jamatraj Kewalji Govani Vs. State of Maharashtra, AIR 1968 SC 178 and Mohd. Hussain: Umar kochra etc. Vs. K.S.Dalipsinghji and another AIR 1970 SC 45 with regard to the interpretation of this section. It was laid down in the first case that Section 540 (equivalent to Section 311 of the new Code) was intended to be wide and there was 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. In the second case when Public Witness Ali was examined and cross-examined, the defence moved an application for recalling him for crossexamination on the plea that the witness was repentant and wanted to say that he had given false evidence. The Supreme Court held that no ground was made out for recalling Ali because there was no affidavit from Ali nor was there any other material showing that his testimony was incorrect in any material particular. In the case before this Court, Public Witness -1 Pushpa after her examination and cross-examination, was alleged to have sworn two affidavits which contradicted her earlier statement in the court. The application under Sec.3ll of the new Code was allowed and the revision of the State against that order was dismissed. Therefore, the crux of the matter seems to be that if some material is available to the court to indicate that the witness who is sought to be recalled had given some evidence earlier which was materially different from the statement with which he is sought to be confronted, permission to recall the witness should be granted under Section 311 of the Code. In the present case, however, there is no material available even with the petitioners. They have come forward with a vague allegation that Public Witness Manjit Singh had been going round and giving various versions and reasons for deposing under pressure of police. It is not stated in the application as to who tape-recorded the version of the said witness on the tape recorder and when and where it was recorded. It is not even stated in this application, as to what was that version given by Public Witness -6 now which was contradictory to his earlier version. Even the tape-recorded version or its transcript was not filed before the Court and it was simply stated in the application that the same will be filed when permission is granted. I must say that without disclosing any authentic material, an attempt was sought to be made by the petitioners to recall the witness and put him some fishing questions in order to extract one thing or the other from him like the case of a person trying to hold a straw in a big river for safety. It must be remembered that Section 311 is not to be applied in two stages, first by seeking permision to recall a witness and thereafter producing material in Court with which he is sought to be confronted. All such material requires to be disclosed in one go and not in piece meal stages. If such procedure is adopted, no trial can be concluded. If the petitioners really had some substantial material, they should have pointed out what was deposed by Public Witness -6 earlier and what is that tape-recorded version which goes against the earlier deposition. The story does not end here. Petitioners will also be required to produce that witness who purported to tape-record the statement and then further some expert who will identify the voice of Public Witness -6. By filing such a vague application, the only intention seems to delay the trial and nothing more. More than a year has elapsed and the trial is held up. The contention that prosecution took nine years to complete its evidence is also not correct. The occurrence took place on 2.7.1983. The case was committed to the Sessions Court and dealt with for the first time by learned ASJ on <PG>23</PG> 16.2.1984. The record bears the testimony to numerous adjournments sought on behalf of the petitioners either because of non-availability of their counsel or because of strike resorted to by the lawyers or even absence of one of the petitioners on the state of the evidence. Therefore, it is not correct to say that the trial has protracted only on account of the fault of the prosecution but it has not concluded for the aforesaid reasons also. Even after closure of the prosecution evidence on 9.4.1991, it took almost nine months spread over various dates for recording the statements of the petitioners under Section 313 of the Code for either of. the afore-said reasons. Therefore, the fault attributed to the prosecution of having taken nine years to complete the evidence is not correct.