NAND KISHORE SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) A very interesting question has been raised in this case to Whether after an accused has been examined under Section 313 of the Code of Criminal Procedure (hereinafter referred to as the Code), the Trial Court can recall a witness for examination and cross-examination in exercising of its power under Section 311 of the Code.

(2.) The facts of the case, in short, is that the charge-sheet against the petitioners was submitted under Sections 342, 384 and 506 of the Indian Penal Code and cognizance was taken on 14.12.1985. On 25.1.1991 the informant Shri S.N. Singh was examined and was discharged. On 14.9.1992 an application was filed on behalf of the petitioners to recall Sri Singh for further cross-examination. Prayer was allowed and by order dated 19.9.1992 the Court below directed the prosecution to produce Sri Singh in the Court for his further cross-examination. It appears that as Sri Singh was not produced by the prosecution for further cross-examination his evidence was expunged on 28.6.1994. The prosecution closed its case and on 26.7.1994 the statement of the petitioners under Section 313 of the Code were recorded. On 24.8.1994 the prosecution filed a petitioner praying to allow the prosecution to produce Sri Singh for further cross-examination. A rejoinder to the said petition was filed by the petitioners but by the impugned order dated 19.4.1995 the Court below has allowed the prayer of the prosecution and directed the prosecution to produce Sri Singh for further cross-examination. This order dated 19.4.1995 is impugned in this application.

(3.) Mr. M.M. Banerjee, learned Counsel appearing on behalf of the petitioners, submits that the order of the Court below is vitiated in law on two accounts; firstly the Court below having expunged the evidence of Sri Singh by order dated 28.6.1994 could not have recalled/modified the said order by passing the impugned order and secondly it is submitted that power under Section 311 of the Code could be exercised at any time but definitely not after the accused is examined under Section 313 of the Code. It is done then, it is contended, that the prosecution may fill up the lacuna in the defence case, which is not permissible in law.