- (1.) THE present petition has been filed by the petitioners-accused under Section 482 of Cr.P.C. challenging the order dated 28th July, 2012 passed by the Civil Judge (JD) & Judicial Magistrate, Kishangarh (hereinafter referred to as 'the trial court') in Cr. Regular Case No. 539/99, whereby the trial court has allowed the application filed by the prosecution to recall the Witness Omprakash under Section 311 of Cr.P.C.
(2.) IT has been sought to be submitted by the learned counsel Mr. Rajesh Sharma for the petitioners that the trial court had permitted the prosecution to recall the witness who was already examined as P.W. 7, at the fague end of the case when the case was listed for final arguments after recording the statements under Section 313 of Cr.P.C. He also submitted that the reasoning given by the trial court in the impugned order are contrary to the record of the case, inasmuch as despite several opportunities having been granted to the prosecution, the concerned witness was not kept present, however the trial court has observed that the prosecution was not granted sufficient opportunity. He also submitted that the prosecution had filed the application for recalling the said witness in order to fill up the lacuna which was found in his evidence. However, the learned Public Prosecution Mr. Peeyush Kumar has submitted that the evidence of the concerned witness P.W.7 had remained incomplete as the article was not brought from the Malkhana and thereafter due to oversight his evidence remained incomplete. He also submitted that considering the seriousness of the offence, the witness was recalled by the trial court by the impugned order, which is discretionary order passed under Section 311 of Cr.P.C. At the outset, it is required to be stated that the concerned witness P.W.7, Omprakash is sought to be recalled under Section 311 of Cr.P.C. by the trial court at the fague end of the case when the appeal was listed for final arguments after recording the statements of the accused under Section 313 of the Cr.P.C. This court fails to understand as to how the statements of the accused under Section 313 of the Cr.P.C. were recorded without verifying the record of the case by the trial court. It is needless to say that the trial court is required to bring to the notice of the accused the incriminating material which might have come on record during the course of trial against the accused and therefore the trial court is expected to verify the record before recording the statements under Section 313 of Cr.P.C. In the instant case, when the statements of the accused were recorded under Section 313 of Cr.P.C., it should have come to the notice of the trial court that the evidence of P.W.7 Omprakash was incomplete and was required to be completed. The trial court without noticing the said fact, recorded the statements of the accused under Section 313, and fixed the case for final argument which exhibits total non-application of the mind on the part of the trial court. The court also finds substance in the submission of the learned counsel for the petitioner that sufficient opportunity was granted to the concerned witness to remain present for completing the incomplete evidence, as transpiring from the order-sheets, and therefore, it was not proper for the trial court to mention in the impugned order that the prosecution was not given sufficient opportunity. Having said that,it may be further noted that the powers under Section 311 of the Cr.P.C. are very wide and the court, at any stage of the proceedings could recall the witness already examined by the prosecution, if it is found necessary for the just decision of the case. In the instant case, the trial court having found that the P.W.7 is an important witness and his evidence is required to be completed for the just decision of the case, this court is not inclined to interfere with the said order, more particularly taking into consideration the seriousness of the offence for which the accused have been charged. In that view of the matter, the present petition deserves to be dismissed and is accordingly dismissed. However, it is clarified that if the prosecution does not keep the said witness present, on the next date fixed by the trial court, it will be open for the trial court to proceed further with the hearing of the arguments in the case. ;