FIROZ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The Petitioners are undergoing a trial for the offence punishable under Section 302 Indian Penal Code, inter-alia. During the course of that the trial court recorded statements of PW-4 Preetam Singh on 6.5.2010. On the same day and also on 31.5.2010 cross examination of the witness aforesaid was made in detail. On completion of cross examination the trial court permitted the public prosecutor for re- examination of witness reserving right for further cross examination. Because of paucity of time, the re- examination could not be made on 31.5.2010. On 26.8.2010, the public prosecutor did not choose to re- examine the witness. On the same day an application was filed by the witness himself seeking his re- examination on the count that while deposing earlier he was under pressure of the family of the deceased. An application was also filed on the same day by the present Petitioners as per provisions of Section 311 Code of Criminal Procedure for recalling and re-examination of witness PW-4 Preetam Singh. The trial court under the order dated 5.10.2010 rejected the applications, thus, these misc. petitions are preferred to question correctness of the order aforesaid.

(2.) It is submitted by counsel for the Petitioners that as per provisions of Section 311 Code of Criminal Procedure the trial court is empowered to summon and re- examine a person, if his evidence appears to it, to be essential to just decision of the case, but in the instant matter the trial court instead of examining the fact that whether recalling and re-examination of PW-4 Preetam Singh was essential to just decision of the case, rejected the application being failed to assess that whether earlier statements given by the witness concerned were under pressure or the desire made by him for re-examination is under pressure.

(3.) While claiming to recall the witness for a fair trial and to reach at a just decision reliance is placed by learned Counsel upon the judgment of Hon'ble Supreme Court in Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., 2004 SCC(Cri) 999. In the case aforesaid Hon'ble Apex Court held that the power of a trial court under Section 311 Code of Criminal Procedure is neither to help the prosecution nor the defence, but to control the proceedings effectively so that the ultimate objective i.e. truth is arrived at, may be achieved. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishful or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts should not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.