VINOD Vs. STATE OF HIMACHAL PRADESH AND ORS.

JUDGEMENT

(1.) Cr.MP No. 697 of 2015 Given the averments made in the application instituted at the instance of the applicant for setting aside the order of 17.6.2015 by which the petition of the petitioner was dismissed for non-prosecution, the application is allowed. Consequently the order of 17.6.2015 is recalled. Petition be restored to its original number. Cr.MMO No. 65 of 2015

(2.) When the matter had reached the stage of recording of the statement of the accused under Section 313 Cr.P.C, the petitioner/accused had instituted an application under Section 311 Cr.P.C before the learned trial Court for recalling/reexamining of prosecution witnesses including Dr. Virender Mohan under whom the accused/petitioner underwent treatment as a patient of psychiatry. The application aforesaid came to be dismissed by the learned trial Court. The dismissal of the application preferred by the petitioner herein by the learned trial Court does not warrant any interference in as much as the contemplation of the provisions of Section 311 Cr.P.C which are extracted hereinafter empowering the trial Court to recall and re-examine any person already examined cannot in any manner be construed so as to permit the accused/petitioner to, after examination of the prosecution witnesses, recall/reexamine them. The power of recalling and re-examining of the prosecution witnesses previously examined or of recalling and re-examining of the witnesses examined by the defence obviously, is a jurisdiction exercisable by the learned trial Court on a motion made before it by the learned P.P or by the learned defence counsel respectively to recall and reexamine their respective witnesses. The provisions of Section 311 Cr.P.C do not empower either the learned defence counsel or the learned PP to recall and reexamine either the prosecution witnesses previously examined or the defence witnesses examined subsequent to the recording of statement of the accused under Section 313 of Cr.P.c. Consequently, the order rendered on application under Section 311 Cr.P.C by the learned trial Court is not ingrained with any illegality or legal impropriety. Resultantly, it necessitates its being vindicated. 311. Power to summon material witness, or examine person present-Any Court may, at any stage of any inquiry, trial or 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 and 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."

(3.) The order of 5.3.2015 is also impugned before this Court by the petitioner whereby it after the recording of the statement of the accused/petitioner herein under Section 313 Cr.P.C dismissed an application moved at the instance of the latter for examining the witnesses recited in the list. The ground as portrayed in the order dismissing the application preferred by the accused/petitioner herein before the learned trial Court for examining in his defence the witnesses recited therein, is of no reason having been conveyed therein qua the necessity of summoning the witnesses depicted in the list. However, even when the accused/petitioner herein had omitted to, divulge in the application containing the list of witnesses to be examined in his defense, the reason or the necessity for their examination, nonetheless the learned trial Court was under a bounden legal duty for facilitating the affording of an ample and adequate opportunity to the applicant/accused to adduce/lead evidence in defence that it accord to him the necessary permission/order for examining the witnesses depicted in the list of witnesses. In the learned trial Court having not permitted the issuance of summons to the persons as reflected in the list of witnesses proposed to be examined in his defence by the accused, it has thwarted a very valuable right of the applicant to lead/adduce a full and efficacious defence. The baulking of by the learned trial court of adduction of a full and efficacious evidence in defence by the accused/petitioner herein, by not issuing summons for procuring their presence for theirs being examined, on a flimsy ground, has prejudiced the applicant/accused in projecting his defence. Consequently, the impugned order of 5.7.2013 is quashed and set aside. The learned trial Court is directed to issue summons to the persons recited in the list of witnesses as filed before it so as to enable the petitioner/accused to examine them in his defence. The petition stands disposed of, as also, the pending applications, if any.