BANT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) BANT Singh, petitioner, was tried and convicted by the trial court on a charge for offence punishable under section 9 of the Opium Act, 1878, for the possession of 3 kgs of opium. During the trial, the formal evidence of Moharrir-Head Constable Suba Singh was tendered in evidence. Bant Singh accused petitioner, then went up in appeal against the order of the trial court. During the course. of arguments in that appeal, the learned Additional Sessions Judge, Barnala, allowed the application of the prosecution under section 311 of the Code of Criminal Procedure, 1973, for re-summoning Moharrir Head Constable Suba Singh and to tender fresh and properly attested affidavit by holding that simple defect in the attestation of the affidavit was only a technical flaw and the evidence of the witness was essential for just decision, of the case vide impugned order dated 5.12.1989. Feeling aggrieved against that order, the accused had invoked the inherent jurisdiction of this Court under section 432 of the Code of Criminal Procedure for quashing the same.

(2.) I have heard the learned counsel for the parties, besides perusing the record. No doubt, allowing of (every application under section 311 of the Code, during the pendency of the appeal. would amount to filling up the lacuna in the case of either side, yet all the same, the legislature in its wisdom has enacted these provisions for empowering the Court to summon, recall or re examine material witnesses, at any stage of the inquiry, trial or other proceedings, if such evidence is essential for just decision of the case. The provisions of section 311 of the Code, are as under :-

(3.) THUS , the only question that survives for determination is whether in the circumstances of this case, the evidence of' Moharrir Head Constable Suba Singh is essential for the just decision of the case or it would amount to rebutting the defence version. It is noteworthy that the appellate court has simply allowed the prosecution to re-examine this witness or tender his evidence on duly attested affidavit in order to rectify a technical flaw in the attestation of the affidavit already tendered by the trial Court. Keeping in view that the offence, under section 9 of the Opium, Act is against the society at large, as the consumption of the same would adversely affect the humanity it transpires that the rectification of such a technical flaw was rightly allowed by the appellate Court, especially when it would not amount to introducing an altogether fresh evidence.