SUSHIL KUMAR SANGNERIA Vs. FOOD INSPECTOR CUTTACK

JUDGEMENT

(1.) Petitioner calls in question legality of order passed by learned Judicial Magistrate, first class, Cuttack refusing his prayer for being recalled for the purpose of re -examination. The said prayer was in terms of Section 138 of the Indian Evidence Act, 1872 (in short, the 'Evidence Act') and under Section 31 of the Code of Criminal Procedure, 1973 (in short, the Code')

(2.) A brief reference to the facts situation which is almost undisputed is necessary. Prosecution has been launched' against the petitioner for commission of offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 199i4 (in short, the 'Act'). After closure of prosecution case, accused petitioner entered into defence by examining himself as a witness (DW 1). One of the pleas taker* by the petitioner related to warranty. It was pleaded that petitioner had purchased the mustard oil from which sample was collected by the Food Inspector from another concern (M/s. Prag Oil Milh. The purchase invoice was marked as Ext. A. During cross -examination it was stated by the petitioner that the only signature appearing in Ext. A is his signature. The learned counsel for the petitioner prayed for examination of the witness under Sec 138 of the Evidence Act and Section 311 of the Code It was submitted that there was a bona fide mistake in stating that the only signature was that of the accused, as the signature as appearing in Ext.A is completely different from various signatures of the accused -petitioner appearing in the case record. The complainant (opposite party herein ) filed objection. The prayer was rejected on 9 -7 -1393 by the learned JMFC. An application for revision was filed before learned Sessions Judge, Cuttack, The application was disposed of with the observation that in case opportunity of the defence is closed, real truth whether the accused has purchased from M/s. Prag Oil Mill Depot under cash memo (,Ext, A) cannot properly be deter - mined to appreciate his version. He recorded the concession of both parties that the accused, if he so likes, may examine either the owner of M/s. Prag Oil Mill Depot situated at Malgodown or the manufacturer who is alleged to have sold the brand in support of his defence and observed that in such a situation, Court can appreciate the truth or otherwise of the defence version. He further observed that after examination of those witnesses, question may arise about recall of DW 1 and H at that stags he files a fresh application, it will be considered on its own merit. After disposal of the revision application prayer was made by the petitioner to issue summons to the owner of M/s. Prag Oil Mill, and/or the manafacturer of M/s. Prag Oil Mill who had issued Ext. A. Despite service notice by affixture, there was no appearance by the notice. Therefore for clarification of the question whether signature of the accused - petitioner appears on Ext. A prayer was made to recall the witness. The learned JMFC rejected the prayer on the ground that the manager of M/s. Prag Oil Mill or any other person having not been examined, question of petitioner's examination on recall does not arise.

(3.) SECTION 138 of the Evidence Act deals with order examinations and direction of re -examinations Re -examination of a witness must be confined to the explanation of matters referred to in cross -examination ; no new matter can, without the permission of the Court, be introduced in re -examination. Therefore, the party calling the witness must obtain from the witness in his examination -in -chief all that the witness knows in the party's favour or in his own favour. A re -call for re -cross -examination will ordinarily be unnecessary, except in the rare cases where the direct examination of an intervening witness has brought out new facts upon which the prior witness may throw light, and for this the matter can always be left in the hands of the trial Court. Under ordinary circumstances it is not necessary or permissible to allow a witness once examined and dismissed by a party to be recalled, for it is expected that the advocate will interrogate him on all material points touching his case. Unforeseen situation may however develop and there may also be inadvertent omissions. in such cases, the Court may in its discretion allow a witness to be recalled. But surprise or prejudice to the other party should be guarded against, as when the other party has dismissed his witnesses after the close of the case of both parties. Nor should a party be allowed to till up lacuna in evidence under the pretext of a recall In Carrary v. Connary 5 Binn 488, Tighaman, C. J, said 'It may be necessary, in order to come at the truth of the case, to examine him as to new matter, and after that there may be a second cross -examination, The Courts at their discretion may permit a witness to be examined by either party over and over again at any time during the trial. But they will take care to exercise this discretion, so as not to suffer any advantage to be gained or trick or artifice.