@JUDGMENTTAG-ORDER
Swatanter Kumar, J.@mdashThis revision petition is directed against the order of the learned Additional Sessions Judge, Patiala, dated 21-7-
1995 whereby he allowed recalling of PW Gurdeep Singh and permitted his further statement to be recorded. The statement of the said witness
has not been recorded in view of the stay granted by this Court.
2. The facts as emerge from the records are that the petitioner and respondents No. 2 to 6 in this '' petition, were facing a trial under Sections
460,302 read with Section 34 I.P.C. under F.I.R. No. 107 dated 14-8-1991. The prosecution evidence was in progress and the statement of PW
Gurdeep Singh was recorded on 9-5-1995. Ultimately, prosecution evidence was closed on 10-7-1995. Thereafter the accused were put into
witness box for recording their a statements u/s 313 of Criminal Procedure Code, hereinafter referred to as the Code, on 1lth, 12th and 14th of
July, 1995, respectively. The prosecution then filed application on 14-7-1995 praying that Gurdeep Singh may be recalled for further examination
in the interest of justice. The learned trial Court vide the impugned order allowed the stay application and permitted the recalling of Gurdeep Singh
for recording of his further statement. The petitioner is aggrieved from this order.
3. The main ground urged by learned counsel for the petitioner is that great prejudice will be caused to the accused because they have already
disclosed their entire defence in recording their statements u/s 313 of the Code and the reasons given in the application do not constitute a sufficient
ground within the meaning and perview of the provisions of Section 311 of the Code. On the other hand, learned counsel for the State submits that
the order is well founded and has been passed to achieve the ends of justice.
4. Having heard the counsel for the parties at some length it is important to refer to the fact that the application for recalling PW Gurdeep Singh
appears to have been typed on 9-5-1995, much prior to the date even when the prosecution evidence was closed and the accused were called
upon to enter their defence upon regarding their statements u/s 313 of the Code, though this application was filed in the Court admittedly on 14-7-
1995 after the afore-stated proceedings have already been taken before the Court. There is no doubt that the powers of the Court u/s 311 of the
Code are very wide and specifically empowers the Court to summon a witness or re-examine any person who has already been examined. The
basic criterion which is of consideration before the Court in passing such an order is that it is essential to the just decision of the case. Thus the
evidence has to be essential for the purposes of delivering a just decision of the case and the mere negligence and carelessness on the part of a
party cannot constitute a ground which will fall within the ambit and scope of this section. Paragraphs No. 2 and 3 of the said application read as
under:-
2. That on 9-5-95 PW Gurdeep Singh was examined who was material witness before whom the accused made extra judicial confession.
3. That inadvertently his full evidence could not be recorded.
The Court fails to see any reason that inadvertence admitted by a party clubbed with an absolute callousness in not presenting the application
before the Court practically for a period of more than two months cannot be said to be a ground which would call for orders from the Court
granting such permission. Nothing has been stated or argued before me to justify the said delay. Thus, the conduct of the prosecution certainly
lacks bona fides and even the reasons stated in the application cannot be termed as sufficient reasons for invoking the power of the Court u/s 311
of the Code.
5. There is also substance in the other contention raised by learned counsel for the petitioner that the prosecution, as an afterthought, is now trying
to fill up the lacunas in its case and especially when the accused have already disclosed their defence. He further submits that by way of the
impugned order serious prejudice is inevitable to the defence of the accused. I find that the said two submissions are well founded. The accused
has a fight to make statement u/s 313 of the Code where in the entire prosecution evidence on record against the accused has to be put to him and
he has the right to say what be considers appropriate while the said statement is being recorded. The accused practically discloses his defence in
that statement. Prejudice to the defence of an accused resulting from slackness or carelessness on the part of the prosecution cannot be permited in
view of the settled principles of criminal jurisprudence. In this regard reference can be made to the observations of Hon''ble the Supreme Court in
the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, which reads as under (Para 4):-
The prosecution had been made afforded a full and complete opportunity at the trial stage to produce whatever material it liked and it had chosen
to examine two witnesses but for reasons best known to it did not produce the note, which formed the subject-matter of the Resolution of the
Sanctioning Authority - Exh. P-16. It is well settled that in a criminal case this Court or for that matter any court should not ordinarily direct fresh
evidence to fill up a lacuna deliberately left by the prosecution. The liberty of the subject was put in jeopardy and it cannot be allowed to put in
jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it.
Learned counsel for the petitioner also relies upon a judgment of this Court in the case of Jagdish Chander v. State of Haryana (1983) 2 CLR 432.
6. In the present case the learned trial Court has misdireted itself to use the term ""but of doing complete justice between the parties"". The
expression to do complete justice between the parties cannot be equated to the term used in Section 311 of the Code to just decision of the case.
The powers u/s 311 of the Code being wide require a greater caution to be exercised by the Courts. Invocation of the provisions of Section 311
of the Code presupposes valid and good reasons for specially recalling a witness for further examination and also such examination as a matter of
fact must be considered by the Court as essential to the just decision of the case. Thus, the power under this Section may not be permitted to be
invoked on the mere asking. The accused who faces trial for a considerable period cannot be reverted back to the original position by induction of
further statements which the prosecution was obliged to prove at the first instance when it got full and complete chance to lead evidence. In the
present case the witness was produced only for the purposes of proving extra-judicial confession(s) made by two of the accused to him (Gurdeep
Singh). This fact itself was not put to him when he was in the witness box. As already noticed, application was unnecessarily delayed and ultimately
the accused are bound to suffer prejudice to their defence if the said order is permitted to stand. At this stage reference can be made to the
judgment of Supreme Court in Mohanlal Shamji Soni Vs. Union of India and another, where the Court held as under (Para 9):
However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and
exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow for any
discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the
just decision of the case.
7. In view of the reasons aforestated this petition succeeds. Consequently, the impugned order dated 2-1-7-1995 is set aside. Now the trial Court
is directed to proceed with the matter in accordance with law.