JITENDRA MOHAN Vs. STATE

JUDGEMENT

(1.) THE petitioner is invoking this Court 'spower under section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) for quashing the order dated 21.1.2004, passed by the special Judge Vigilance, Patna, in Special case No. 80 of 1991 whereby the court, in exercise of it 'spower under section 311 of the Code ordered for recalling P.W. Nos. 13 and 5 for re - examination. The impugned order shows that the case was fixed on 31.1.2004 for judgment but on perusal of the evidence of witnesses the court found that some positive photographs alleging that those were photographs the accused along with his family members and candidates which were photographed in Bombay were proved and marked as material Ext. l but the attention of the witnesses was not drawn towards the" identity of the persons as to whom the photographs was Therefore, feeling difficulties in just and proper decision of the case he ordered for recalling the two witnesses for drawing their attention towards the facts as to whose photographs it was and therefore, exercising powers under section 311 Cr. P.C. the learned Special Judge order for recalling of the witnesses.

(2.) THE provisions under section 311 of the Code of Criminal Procedure reads as follows : Rama Shankar Singh Versus State Of Bihar

(3.) THE learned counsel for the petitioner has argued that no doubt there are such powers under section 311 of the Code but it is subject to some limitations. It was argued that the court can recall or re -examine any witness but this power cannot be used for filling in the lacuna in the case of either side. The petitioner 'scounsel cites the decision in the case of Balbant Singh vs. The State of Rajsthan report in 1986 Cr. L.J. 1374. In this case two witnesses P.W. 2 and 3 were ordered to be recalled by the court under section 311 of the Code for clarification of the matter whether "Grhasi" and "Darat" were used from blunt side or the sharp edges side by the three persons causing injuries to the injured. Under these facts the High Court of Rajsthan held that the court was not justified to use its power under section 311 in recalling the witnesses for that purpose. From the facts of the case it is clear that the examination of the two witnesses would amount to an attempt to fill in the lacuna in the case of the prosecution and therefore, the court was not allowed to use it 'spower under section 311 of the Code. The petitioner 'scounsel further cited the case of Pyara Singh and others vs. The State of Punjab reported in 1978 Cri. L.J. 771. In that case when the accused had closed their defence the trial court had allowed prosecution to allow further evidence to explain delay in lodging of the F.I.R. The Punjab and Haryana High Court did not find it a fit case of exercising powers by the trial court under section 311 of the Code.