Re-examination of a witness u/s311 CRPC-Not to be denied only because case is not covered u/s138 Evidence Act-criteria u/s311 CRPC different than criteria for Sec-138 Evidence Act.- High Court of Punjab and Haryana.
Re-examination of a witness u/s311 CRPC-Not to be denied only because case is not covered u/s138 Evidence Act-criteria u/s311 CRPC different than criteria for Sec-138 Evidence Act.- High Court of Punjab and Haryana. Section 311 of CrPC defines the “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. The landmark judgement passed by the single bench of HON’BLE JUSTICE RAJBIR SEHRAWAT in BHUPINDER KAUR VS STATE OF PUNJAB (CRM-M-38052-2013(O&amp;M)) dealt with the issue mentioned above. In this case the petitioner’s son goes missing, Who was forced to live separately from petitioner by his in laws (wife’s parents) the accused in this case was his son’s father in law who was found last with the victim (son), The petitioner approached the police station after several trial of finding his son, but the police officer denied to register her complain. The petitioner approached the court and then FIR got registered but no action was taken after that. During   trial the portion alleged by the petitioner in the FIR, had not come in her deposition, the petitioner moved an application under Section 311 CrPC for permitting her to be re-examined. This application was dismissed by the trial Court. Therefore, the present revision petition has been filed. The learned counsel for the petitioner mentioned that mentioned that she had disclosed the sequence of the facts before the trial Court a the petitioner being a widowed lady of old age, who had lost her only son had not properly understood the import of deposition made by her, objection raised by the public prosecutor and the effect of omission in her deposition. The interest of justice would be severely impaired and further contended by the counsel for the petitioner that the trial Court has totally misunderstood inter se import of Section 311 CrPC and Section 138 of the Indian Evidence Act. Therefore, the trial Court has considered only Section 138 of the Indian Evidence Act. The learned counsel for the state contended submitted that the trial Court has rightly dismissed the application and stated that examination-in-chief and the cross-examination are absolute and there is nothing in her cross-examination which requires her to be re-examined as per Section 138 of the Indian Evidence Act. Hence, the present petition deserves to be dismissed The Hon’ble court analyzed the facts of the present case and the arguments of both the parties and opined that “this Court finds that the trial Court has dismissed the application filed by the petitioner merely on the ground that the case of the petitioner is not covered under Section 138 of the Indian Evidence Act. This is not correct application of Section 311 CrPC by the trial Court. The trial Court is primarily concerned with arriving at the truth about the facts in issue. Therefore, the parameters for exercising powers under Section 311 CrPC. are well defined. the petition is allowed. The trial Court is directed to grant one effective opportunity to the petitioner to get herself re-examined.”
 on 24 01 CRM M 38052 2013(O&M) 1 206 IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH CRM M 38052 2013Date of decision: 16.01.2019Bhupinder Kaur ...PetitionerVersusState of Punjab and others ...RespondentsCORAM: HON BLE MR. JUSTICE RAJBIR SEHRAWATPresent:Mrs. Baljit Mann Advocate for the petitioner.Mr. Rajat Bansal AAG Punjabfor respondent No.1 State.Mr. Lovekirat S. Chahal Advocatefor respondents No.2 and 3.RAJBIR SEHRAWAT J.vide which the application under Section 311 Cr.P.C. filedby the petitioner seeking her re examination as a witness in the trial in caseFIR No.37 dated 13.07.2010 under Sections 365 120 B of IPCat Police Station Phase XI SAS Nagar Mohali(Annexure P 1) has been dismissed.The facts leading to the filing of the present petition are that thepetitioner herein is a widow who had only son namely Gurdeep Singh.The son of the petitioner was married to the daughter of the accused JagbirSingh on 13.11.2008. The accused Jagbir Singh was serving as Sub Inspector in the Punjab Police and was posted at CIA Mohali. However asthe facts unfold the matrimonial aspect between the son of the petitionerand the daughter of the accused Jagbir Singh did not go well. Therefore the on 24 01 CRM M 38052 2013(O&M) 2 accused Jagbir Singh himself got lodged an FIR on 29.05.2009 involvingthe present petitioner and her son with the alleged offences under Sections343 323 506 406 420 34 of IPC and Section 25 of Arms Act at PoliceStation Phase VIII Mohali. However the matter did not stop there.Another FIR was got lodged on 02.06.2009 by Ranjit Kaur the wife of theaccused Jagbir Singh. Feeling pressurized because of these FIRs the petitioner andher son had entered into a settlement with the accused Jagbir Singh and hiswife so that the FIRs could be got quashed. The interesting conditionimposed for settlement of the FIRs was that son of the petitioner namely Gurdeep Singh would leave his widowed mother and would start living withthe accused along with his wife besides paying the other miscellaneousexpenses for settling the FIRs. As a result the son of the petitioner startedliving with the family of the accused Jagbir Singh and the FIRs were gotquashed through petitions filed on the basis of the compromise. However on 03.07.2010 the son of the petitioner came to meether and he had informed the petitioner that he was feeling distressedbecause he had a quarrel with his wife and mother in law the previousnight. But on 04.07.2010 son of the petitioner left the house of thepetitioner complainant. Thereafter he did not return to the petitioner. Shehad made several calls to her son on his mobile phones. At about 1.00 p.m. on 04.07.2010 he said that he would come to meet the petitioner. However thereafter he stopped picking up the calls. After 8.00 p.m. on the sameday the mobile phone of the son of the petitioner was not reachable . Thereafter the petitioner started searching for her son.However she could not get any clue about whereabout of her son. Hence on 24 01 CRM M 38052 2013(O&M) 3 she approached the police on 06.07.2010 and lodged a missing report. Thepolice registered a DDR on the statement of the petitioner in which she hadstated that her son had gone missing and she does not have any clueregarding whereabouts her son. Also she stated that she does not have anysuspicion against anybody. Later on one Satnam Singh met the petitioner and informed herthat on 04.07.2010 itself he happened to have met the son of the petitioner.He was in apparent hurry. When Satnam Singh questioned the son of thepetitioner as to why he was in hurry the later informed that he had beencalled by his father in law. Thereafter son of the petitioner went supposedly to his father in law. Accordingly the petitioner contacted thefather in law his son namely the accused Jagbir Singh. However nosatisfactory reply was given by him. This lead the petitioner to approach thepolice again to make a statement describing all these happenings. Inaddition to these facts the petitioner also disclosed to the police that in themeantime on 03.07.2010 itself the wife of the son of the petitioner namely Jaspreet Kaur had left for USA. It was also disclosed that the petitionerwent to the house of the accused Jagbir Singh to know about the exactsituation however their house was found locked. On the basis of thisgamut of circumstances the petitioner asserted in the statement thataccused Jagbir Singh his daughter Jaspreet Kaur and his wife Ranjit Kaur all three have conspired to eliminate the son of the petitioner. On the basisof this statement the FIR was got registered by the petitioner. However since the dead body of the son of the petitioner was not recovered therefore the case was registered under Sections 365 read with Section 120 B of IPCand Section 364 of IPC added later on. on 24 01 CRM M 38052 2013(O&M) 4 In the meantime one more fact needs to be noted that despitethe petitioner approaching the police the police were not registering theFIR. Therefore the petitioner had to approach the Court of Magistrate underSection 156 Cr.P.C. for getting the FIR registered. Only thereafter the FIRwas registered by the police. However despite the FIR having been registered the policewere neither investigating the case nor any report was filed before the Court therefore the petitioner had to approach the High Court seeking a directionthat the investigation of the case be handed over to some independentagency higher Authorities. This Court ordered that the Special InvestigationTeambe constituted to investigate the case.After investigation of the case the police filed challan againstaccused Jagbir Singh. Regarding the other two accused the SIT hadrepresented before the Court that no evidence sufficient to file report underSection 173 Cr.P.C. was found against Jaspreet Kaur and Ranjit Kaur.Hence no challan was filed against them. The trial of the case started and the statement of the petitionerwas recorded. Besides her the other two witnesses namely Gurjit SinghPW 1 and Rashpal Singh PW 3 were also examined. The statement of theother witnesses duly reflects towards the discord and quarrel between theson of the petitioner and his wife and mother in law. However thepetitioner instead of deposing as to the facts as contained in the FIR shedeposed before the trial Court as per the version given in the DDR whichwas recorded in the first instance. The statements of the witnesses of thepetitioner have also been attached with the petition. A perusal of the statement of the petitioner before the Court on 24 01 CRM M 38052 2013(O&M) 5 also shows that the public prosecutor had raised the objections qua omissionof certain portions which were mentioned in the FIR but which had notcome in the statement of the petitioner made before the Court. The publicprosecutor had sought to get the petitioner declared as a hostile witness.However the trial Court had not accepted the objection and refused todeclare the petitioner as hostile witness. Thereafter the cross examinationof the petitioner was also completed.Finding that the portion regarding the aspect of conspiracyhatched by Jagbir Singh his wife and daughter to eliminate the son of thepetitioner as was alleged by the petitioner in the FIR had not come in herdeposition the petitioner moved an application under Section 311 Cr.P.C.for permitting her to be re examined. This application was dismissed by thetrial Court. Therefore the present revision petition has been filed.While arguing the case learned counsel for the petitioner hassubmitted that she had disclosed the sequence of the facts before the trialCourt and also deposed that she had the suspicion that Jagbir Singh theaccused eliminated her son. However inadvertently she could not includein her examination in chief the aspect which related to the conspiracy of theaccused Jagbir Singh his wife Ranjit Kaur and his daughter Jaspreet Kaur.It is further submitted that the public prosecutor had immediately realizedthis aspect. Therefore even a prayer was made by the public prosecutor thathe be permitted to cross examine the petitioner qua the facts pertaining toconspiracy as mentioned by the petitioner in the FIR. However thatrequest was also declined. Hence it is contended that the petitioner being awidowed lady of old age who had lost her only son had not properlyunderstood the import of deposition made by her objection raised by the on 24 01 CRM M 38052 2013(O&M) 6 public prosecutor and the effect of omission in her deposition. However ifthe aspect of conspiracy is not permitted to be brought on record then theinterest of justice would be severely impaired. Hence it would result in agreat in justice and the trial would be rendered incomplete qua theallegations involved in the case. Therefore the learned counsel for thepetitioner has argued that the application moved by the petitioner whichhas been dismissed by the trial Court be ordered to be allowed. It is further contended by the counsel for the petitioner that thetrial Court has totally misunderstood inter se import of Section 311 Cr.P.C.and Section 138 of the Indian Evidence Act. Therefore the trial Court hasconsidered only Section 138 of the Indian Evidence Act to arrive at aconclusion whether the petitioner should be permitted to be re examined ornot. The consideration as required by Section 311 Cr.P.C. for examinationor re examination of a witness as was prayed for by the petitioner was noteven adverted to by the trial Court. Hence as is clear from the order thetrial Court has not even recorded its satisfaction whether re examination ofthe petitioner would be necessary for the just decision of the case or not. Still further it is contended by the learned counsel for thepetitioner that by any means the petitioner is not introducing any new case.The facts as are sought to be brought on record in the deposition of thepetitioner are already contained in the FIR got registered by the petitioner.Learned counsel for the petitioner has also argued that even the defense hasnot dared to put any question to the petitioner in her cross examination regarding the aspect of conspiracy which was stated by the petitioner in theFIR. Rather to avoid the factum of conspiracy coming on record of the case the defense has not even put the FIR or its contents to the petitioner in her on 24 01 CRM M 38052 2013(O&M) 7 cross examination. Hence in a way the defense has admitted the contentsof FIR qua the conspiracy.On the other hand learned counsel for respondents No.2 and 3has submitted that the first version of the incident is as was given by thepetitioner and contained in the DDR dated 06.07.2010. However in thesaid DDR the names of the answering respondents were not mentioned.There is no allegation of any conspiracy. On the contrary the version asgiven by the petitioner is that she did not know as to where the son of thepetitioner has gone. It is further contended that although in the versiongiven in the FIR on 13.07.2010 the petitioner has tried to introduce thenames of respondents No.2 and 3 however there are no specific allegationsagainst them. In the FIR also the names of respondents No.2 and 3 arementioned only in a passing reference made by the petitioner to the effectthat the respondents No.2 and 3 have also conspired to eliminate the son ofthe petitioner. It is further contended by the learned counsel for respondentsNo.2 and 3 that the examination in chief of the petitioner was recorded on27.09.2012. Despite that she had not deposed anything showing theculpability of respondents No.2 and 3. The petitioner had made a detailedstatement to the Court. The accused had restricted the cross examination ofthe petitioner only qua the case alleged against him. Respondents No.2 and3 were not even present before the Court at the relevant time. Therefore any omission to cross examine the petitioner on any aspect cannot be takenas adverse against respondents No.2 and 3. It is further contended that eventhe SIT constituted pursuant to the order passed by this Court hadexonerated the respondents No.2 and 3. Therefore the application underSection 311 Cr.P.C. has rightly been dismissed by the Court below the same on 24 01 CRM M 38052 2013(O&M) 8 being conjectural in nature.Learned counsel for the State has referred to the reply filed bythe State and submitted that the trial Court has rightly dismissed theapplication. The petitioner was granted ample opportunity to depose freelywhen she was being examined in examination in chief. It is furthercontended that examination in chief and the cross examination are absoluteand there is nothing in her cross examination which requires her to be re examined as per Section 138 of the Indian Evidence Act. Hence thepresent petition deserves to be dismissed. Before proceeding further it would be apposite to refer to theprovisions of Section 311 Cr.P.C. and Section 138 of the Indian EvidenceAct which are as under: Section 311 Cr.P.C.“311. Power to summon material witness or examine personpresent. Any Court may at any stage of any inquiry trial orother proceeding under this Code summon any person as awitness or examine any person in attendance though notsummoned as a witness or. recall and re examine any personalready examined and the Court shall summon and examine orrecall and re examine any such person if his evidence appearsto it to be essential to the just decision of the case.Section 138 of the Indian Evidence Act138. Order of examinations.—Witnesses shall be firstexamined in chief thencross examined thenre examined. The examination and cross examination must relateto relevant facts but the cross examination need not beconfined to the facts to which the witness testified on hisexamination in chief. Direction of re examination.—The re examination shall bedirected to the explanation of matters referred to in cross on 24 01 CRM M 38052 2013(O&M) 9 examination and if new matter is by permission of the Court introduced in re examination the adverse party may furthercross examine upon that matter. ”A perusal of the above provisions makes it clear that theprovision of Section 138 of the Indian Evidence Act is to be pressed intoservice on mere desire of the witness or a party who is examining thewitness. This section is only a rule of evidence and defines the order ofexamination of witness. This Section however provides that in case of suchre examination the same shall be restricted to the additional question whichhave arisen during the cross examination of the witness. Still further thesection provides that if a witness is re examined then such a witness can becross examined by the other side however that can be done only if newmatter is introduced in re examination with the permission of the Court.Therefore this shows that Section 138 has a well defined scope as to whenit is to be invoked and is bounded by parameters specified therein. Thesection can be freely used by the witness or party for re examinationirrespective of the permission of the Court subject to the scope of re examination prescribed by this Section. On the other hand Section 311 Cr.P.C. is a rule of procedure oftrial by a Court and is relating to the discretion of and duty cast upon theCourt. This Section does not give any right as such to any party to movethe Court for calling or recalling of a witness for examination or re examination. However this section gives ample powers to the Trial Courtthat it can call any person as a witness whether in the attendance of theCourt or not. The Court can examine and re examine any witness as itdeems fit. But this Section further casts a duty upon the trial Court that ifsuch evidence appears to be essential for the just decision of the case then 1 on 24 01 CRM M 38052 2013(O&M) 10 the trial Court shall be duty bound to call such person to appear as a witnessin examination or re examination as the case may be. Therefore Section311 Cr.P.C. is mainly relating to the discretion of the Court in one part anda duty caste upon the trial Court in the second part. The common strainrunning through both the parts of Section 311 Cr.P.C. is the just decision ofthe case and the interest of justice that would be served if any such witnessis examined or re examined by the Court. The above explained scope of Section 311 Cr.P.C. and Section138 of the Indian Evidence Act makes it clear that there is absolutely noover laping between the two sections. Merely because the case of a party isnot covered under Section 138 of the Indian Evidence Act would not be anyground to debar such a party or witness to move an application underSection 311 Cr.P.C. The provision of Section 311 Cr.P.C. is independentand irrespective of Section 138 of the Indian Evidence Act. While applying its mind on the aspect of permittingexamination or re examination of a witness under Section 311 Cr.P.C. thetrial Court need not restrict itself to enquire into an aspect whether such re examination has become necessary because of some facts coming in cross examination or not as is required under Section 138 of Indian Evidence Act.The sole criteria for exercising power vested under Section 311 Cr.P.C. isthe interest of justice and the necessity of such examination or re examination for just decision of the case. If any other element is introducedwhile exercising power under Section 311 Cr.P.C. then it would not beunjustified to say that there is a material irregularity in exercise power bythe trial Court. Applying the above said propositions of law to the facts of the 1 on 24 01 CRM M 38052 2013(O&M) 11 present case this Court finds that the trial Court has dismissed theapplication filed by the petitioner merely on the ground that the case of thepetitioner is not covered under Section 138 of the Indian Evidence Act. Thisis not correct application of Section 311 Cr.P.C. by the trial Court. ThisCourt agrees with the submissions made by learned counsel for thepetitioner that while exercising power under Section 311 Cr.P.C. in thepresent case the trial Court has not even adverted to the criteria which isrequired to be taken into consideration as per the mandate under Section 311Cr.P.C. Learned counsel for the petitioner has rightly pointed out that thetrial Court has not even recorded its satisfaction that re examination of thepetitioner is not required for just decision of the case or that it is not in theinterest of justice to permit her to get re examined. Therefore this Courtfinds that the order passed by the trial Court is not as per the mandate theprovision of Section 311 Cr.P.C. Although the learned counsel for the respondents hassubmitted that the trial Court has observed in the impugned order that theexamination in chief is detailed one and the petitioner had the ampleopportunity to depose against respondents No.2 and 3 in examination in chief and cross examination still she has not deposed therefore she did notdeserve to be granted any opportunity to re examine herself. However thisCourt finds that there is no such observation by the trial Court. The trialCourt has only given details of the statement made in examination in chiefby the petitioner and it is observed that the statement of the petitioner hasrestricted the case to the allegations against the accused Jagbir Singh andshe has carried forward the same stand in cross examination. After theseobservation the trial Court has again taken the case towards the scope of 1 on 24 01 CRM M 38052 2013(O&M) 12 Section 138 of the Indian Evidence Act instead of deciding it as per thecriteria required under Section 311 Cr.P.C. Otherwise also on this aspect this Court does not find any forcein the arguments of learned counsel for the respondents No.2 and 3 becauseof two reasons: Firstly the cross examination of the petitioner was not ather discretion. The questions during the cross examination were chosen bythe defense. The petitioner was only being honest while answering thequestions straightway as per the law. Hence she had not gone to volunteerand disclose these facts in the cross examination for which she is nowbefore the Court in an application under Section 311 Cr.P.C. This restrictionof the petitioner only to the questions asked during the cross examinationreflects upon the simpleton nature of the petitioner. Secondly the trial Courthas also not taken note of the fact that the examination in chief of thepetitioner was not unquestioned. As mentioned above the objection of thepublic prosecutor qua omission qua the part of conspiracy had immediatelycome on record. However that objection was over ruled by the trial Court.This had effectively prevented the full facts coming on record of the case which can now be brought on record only through re examination of thepetitioner. Be that as it may the criminal prosecution of an accused is thefunction of the public penal law the offence being a conduct of the accusedagainst the society as such. It is only for this reason that the absolutediscretion is given to the courts to examine or re examine any witness as itdeems fit to arrive at a just decision. Therefore mere fact that in the firstinstance the part of conspiracy was omitted while disposing in examination in chief cannot be a reason or criteria for declining an application moved 1 on 24 01 CRM M 38052 2013(O&M) 13 under Section 311 Cr.P.C. The ultimate test which the trial Court wasrequired to apply was whether the statement which the petitioner now wantsto make is necessary for just decision of the case or not. Needless to saythat the application under Section 311 Cr.P.C. cannot be declined by thetrial Court even if the same is allegedly intended to fill up the lacuna left inthe case of the prosecution. Any supposed lacuna which is pleaded by thedefense and which is allegedly sought to be filled up by the witness istotally irrelevant for the purpose of power to be exercised under Section311 Cr.P.C. The trial Court is primarily concerned with arriving at the truthabout the facts in issue. Therefore the parameters for exercising powersunder Section 311 Cr.P.C. are well defined that it may be exercised in acase where it appears to Court to be necessary in the interest of justice andthis power is bound to be exercised by the Court when the same is necessaryfor the just decision of the case. Hence this Court finds that the dismissal of the application bythe Court below is not as per the standards of law as prescribed undersection 311 Cr.P.C. In ordinary course the matter should have been remanded tothe trial Court for fresh decision on application under Section 311 Cr.P.C.However this Court finds that the case pertains to the year 2010. Evenbefore this Court the present petition is pending since 2013 and theproceedings before the trial Court are stayed since then even qua the mainaccused. Therefore this Court does not consider it appropriate to remit thematter to the trial Court for the limited purpose of re decision on theapplication under Section 311 Cr.P.C. Rather keeping in view the fact thatthe factum which the petitioner intends to bring on record now through re 1 on 24 01 CRM M 38052 2013(O&M) 14 examination already find mentioned in the FIR and Section 311 Cr.P.C. isnot invoked for the purpose of introducing any new fact and coupled withthe fact that the accused respondent shall be having full opportunity tocross examine on these aspect once again this Court deems it appropriatethat the present petition be allowed and the trial Court be directed to permitthe petitioner to get herself re examined in the trial. Although there may becertain aspects which may positively reflect in favour of the petitioner tobring her case clearly within requirements of Section 311 Cr.P.C. however this Court has refrained from expressing any opinion on any aspectwhatsoever lest it should effect the case of the accused or either of theparties.In view of the above the petition is allowed. The trial Court isdirected to grant one effective opportunity to the petitioner to get herself re examined. The defense shall also be entitled to consequently cross examine the petitioner.(RAJBIR SEHRAWAT) JUDGE16.01.2019hemlataWhether speaking reasoned :YesNoWhether Reportable :YesNo 