Criminal Revision No. 94 of 2008 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Revision No. 94 of 2008
Date of Decision: 8.8.2008
Arun Kumar
...Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mrs. G.K.Mann, Advocate
for the petitioner.
Mr. Mehardeep Singh, Assistant Advocate
Genera, Punjab, for the respondent-State.
Kanwaljit Singh Ahluwalia, J. (Oral)
The petitioner is facing trial in case FIR No. 93 dated 5.9.2006
registered at Police Station Islamabad under Sections 376 & 506 IPC.
Prosecutrix was examined as prosecution witness No.4 on 7.2.2007.
After her cross-examination had been concluded, eight months later, on
31.10.2007 application (Annexure P1) was filed stating that before her
deposition in the Court, prosecutrix on 11.9.2006 had given an affidavit
attested by Oath Commissioner in which she had deposed contrary to
her statement made in the Court on 7.2.2007. Counsel for the petitioner
had an opportunity to put contents of the affidavit to the witness. The
witness could be confronted with the same. But affidavit was kept hidden
and the same was not put to the witness. In the application (Annexure
P1, no justification has been given as to why the affidavit could not be
Criminal Revision No. 94 of 2008 2
put to the witness. Even over-sight, negligence or carelessness has also
not been pleaded. The trial Court considered the submissions of the
petitioner and vide order dated 21.11.2007 declined the prayer of the
petitioner.
The consistent view of the Courts is that power to summon
any person as witness in the Court or recall any witness u/s 311 Cr.P.C.
is entirely a discretion of the trial Court and the revisional Court shall not
cause interference in the discretion of the trial Court.
Counsel for the petitioner has relied upon Mohd. Hussain
Umar Kochra etc. v. K.S.Dalipsinghji and another AIR 1970
Supreme Court 10 to say that the Court has inherent powers to recall a
witness after satisfied that he is prepared to give evidence which is
materially different from what had been given at the trial, then the
witness can be recalled. There is no quarrel with this proposition of law
that if the Court is satisfied witness can be summoned. But conveniently
another part of the same para has escaped the notice of counsel for the
petitioner wherein it has been stated that the party asking for the recall
of witness not placing material before Court on which it could be so
satisfied, the Court acted rightly in rejecting the application. Therefore,
this judgment is of no help to the patentor.
Counsel has further relied upon another judgment of Delhi
High Court in State (Delhi Admn.) v. Ramesh Kumar 1990 Criminal
Law Journal NOC 119 (Delhi) 53 to contend that where recalling was
permitted revision of the State was declined. A perusal of the head note
shows that it is a discretion of the Court and revisional Court shall not
cause interference.
Criminal Revision No. 94 of 2008 3
Counsel for the petitioner has further relied upon Jamatraj
kewalji Govani v. State of Maharashtra 1968 Criminal Law Journal
231 to contend that the Courts have inherent powers to call for any
witness. I am exercising the revisional jurisdiction and the power to
summon the witness vests in the trial Court. Therefore, reliance placed
on this judgment is misplaced.
Counsel for the petitioner has also relied upon another
judgment in Jeo Mirza v. State of Punjab 1995(3) Recent Criminal
Reports 26 to contend that in a similar situation this Court has given a
permission.
In that cases affidavit was submitted subsequently but in the
present case affidavit was executed before the deposition. Therefore,
there is no ground to interfere in the discretion rightly exercised by the
trial Court.
No merits. Dismissed.
(Kanwaljit Singh Ahluwalia)
Judge
August 8, 2008
“DK”