ORDER
N.C. Khichi, J.
1. The prayer in this petition under Section 482 of the Criminal Procedure Code, is for quashing the order dated 16-5-1996 (Annexure P-l), passed by Additional Sessions Judge, Faridabad, whereby Mahinder Singh, author of the First Information Report, was allowed to be examined as a witness on the application of the prosecution under Section 311, Cr.P.C.
2. Perusal of the record would show that the petitioner along with his co-accused is facing trial in a murder case in the Court of learned Additional Sessions Judge, Faridabad. Ram Singh as allegedly murdered and the First Information Report No. 124 of 23-6-1993 under Section 302/34, IPC. was lodged at Police Station Chhainsa, by Mahinder Singh, an injured eye witness of the occurrence. At the time of recording of prosecution evidence. Mahinder Singh author of the F.I.R. was given up by the prosecution under the impression that he was won over by the accused. Later on another eyewitness to the incident Jiwan Singh was examined. Thereafter the prosecution filed an application under Section 311, Cr.P.C. alleging therein that Mahinder Singh informant in this case was given up under bona fide impression as having been won over by the accused and that his evidence being essential for just decision of the case, be allowed to be examiend as he had alleged executed an affidavit to speak the truth. This application was opposed by the accused on the ground that the same was filed with mala fide to cause prejudice to the case of the accused persons. It was further pleaded that if Mahinder Singh was allowed to be examined it would lead to injustice to the accused.
3. After hearing the learned counsel for the parties, the learned trial Court while allowing the application of the prosecution, in para 6 of the impugned order observed as under:-
It is apparent on the record that Mahinder Singh is the complainant in this case and his examination is essential for just decision of the case. His examination cannot be disallowed merely because he was given up by learned Public Prosecutor on the ground that he was won over by the accused. If he wants to reveal true facts being complainant in this case, his examination cannot be disallowed.
4. The learned counsel for the petitioner while assailing the impugned order has submitted that only one eye-witness namely, Jiwan Singh was examined on 18-3-1996 and the defence proceeded with his cross-examination on the assumption that Mahinder Singh was no longer in the picture. If Mahinder Singh is allowed to be examined, he will fill up all the lacuna in the prosecution case to the prejudice of the petitioner. He has further submitted that the defence of the accused stands disclosed and the prosecution would take undue advantage of it. He has further submitted that resort to Section 311, Cr.P.C. can be made only when the evidence of the witness is essential to the just decision of the case. However, the learned trial Court has lost sight of this essence of the Section while passing the impugned order and as such, the approach of the trial Court is erroneous and has led to miscarriage of justice. In support of his contention reliance has been placed on Dalip Singh v. State of Punjab 1985 Chand Cri C 128 (Punj & Har) and Sridhar Dass v. State of West Bengal 1996 Cri LJ 813 (Cal) and Shyam v. State of Madhya Pradesh 1995 Cri LJ 3598 (Madh Pra) and R.N. Kakkar v. Hanif Gafoor Naviwala 1996 Cri LJ 365 (Bom).
5. After giving my thoughtful consideration to the submission of the learned counsel for the petitioner, I do not find any force and substance therein. The authorities relied upon have rightly been distinguished by the learned trial Court and are not applicable to the facts and circumstances of the case in hand. Each case has to be decided on its own facts and circumstances. Under Section 311, Cr.P.C. (Section 540 of the old Code), the Court has ample power to summon and examine and re-examine any person whose evidence appears to be essential to the just decision of the case. In State of West Bengal v. Tulsidas Mundhra (1963) 2 SCJ 204 at 207 : 1964 (1) Cri LJ 443 at p 446, it was observed as under:-
It would be noticed that this section confers on criminal Courts very wide powers. It is no doubt for the Court to consider whether its power under this section should be exercised or not. But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case it is its duty to take such evidence. The exercise of the power conferred by Section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case.
In Mohanlal Shamji Soni v. Union of India (1991) 3 Rec Cri R 182 : 1991 Cri LJ 1521, the Apex Court held as under (at p. 1528 of Cri LJ) :-
27. The principle of law that emerges from the view expressed by this Court in the above decisions is that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.
6. In the instant case, Mahinder Singh who was earlier given up as having been won over, is an injured eye- witness of the occurrence. He is the person who is the author of the First Information Report on the basis of which the law was put in motion against the accused persons. The trial Court has come to the conclusion that examination of Mahinder Singh is essential for just decision of the case. Mahinder Singh is an important witness in the case and was given up under a bona fide belief that he had been won over by the accused.
In Swaran Singh v. State of Punjab (1997) 1 Rec Cri R 506 (Punj & Har), one Charan Singh on whose statement the police swung into, action and First Information Report was registered in a murder case, was not examined by the prosecution as having been won over by the accused. Subsequently, the Additional Public Prosecutor moved an application asserting that Charan Singh had been inadvertently given up as having been won over and as such, sought the permission of the trial Court to examine him as a witness in the case. This application was opposed by the defence counsel and was disallowed by the learned trial Court, however, the appellants were convicted. While hearing the appeal the Division Bench of this Court while exercising powers under Section 386, Cr.P.C. directed the learned trial Court to examine Charan Singh complainant as a prosecution witness.
7. Keeping in view the facts and circumstances of the case, it cannot be said that the approach of the trial Court in exercising the inherent powers under Section 311, Cr.P.C. for allowing the prosecution to examine Mahinder Singh informant as a prosecution witness, was erroneous in law. In my considered view, in the interest of justice and fair trial of the case, the trial Court was fully justified to pass the impugned order and as such, no interference is called for.
In view of the foregoing discussion, this petition fails and the same is hereby dismissed. However, the learned trial Court is directed to conclude the trial expeditiously preferably within 3 months from the receipt of a copy of this order.
