JARNAIL SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS petition under Section 482 Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) relates to quashment of order dated 7-12-1988 (Annexure PI) passed by the Sub-Divisional Judicial Magistrate, Dabwali, refusing to recall Jarnail Singh as a witness for additional evidence.

(2.) IN brief, the facts relevant for disposal of this petition are that on 25-6-1984 a case under Sections 324, 325 and 506, Indian Penal Code, was registered at Police Station Sadar, Dabwali, against respondents No. 2 to 8 on the statement of the petitioner. After investigation, challan was only presented against respondent No. 2 to 4 whereas, the remaining respondents were shown in Column No. 2 of the report under Section 173 of the Code. The latter were summoned to stand trial under section 19 of the Code and were charge-sheeted. Thereafter, the present petitioner was merely tendered for cross-examination. The defence did not cross-examine him. On 15th November, 1988 an application under section 311 of the Code was moved by the accused before the trial Court for re-examination of the petitioner as a witness. This prayer was declined vide the impugned order (Annexure P.1).

(3.) THERE is no dispute with the proposition of law that under Section 311 of the Code, the trial Court has ample power for recalling and re-examining the petitioner, who has already been examined, if his evidence appears to it to be essential for the just decision of the case. The petitioner had already been examined as a witness for the prosecution, before some of the accused were summoned under Section 319 of the Code. After the summoned accused had appeared in the trial Court, the prosecution was granted adequate opportunity to lead evidence, and, the prosecution in its wisdom merely tendered the petitioner for the purpose of cross-examination. The practice of tendering a witness is not a healthy practice. However, the fact remains that some other witnesses have already been examined by the prosecution, and the re-examination of the witness after recalling him, cannot be permitted in the peculiar circumstances of the present case, in order to fill in lacunae in the prosecution case at this late stage. The impugned order does not suffer from any legal infirmity, nor it is desirable to interfere in the discretion exercise by the trial Court.