- (1.) Accused-Petitioners have preferred this criminal misc. petition under Section 482 Cr.P.C., to assail the impugned order dated 8th of August, 2016 passed by Additional Sessions Judge No.4, Jodhpur Metropolitan (for short, 'learned trial Court'). By the order impugned, learned trial Court has allowed application of the prosecution under Section 311 Cr.P.C., for re-examination of prosecution witness, Investigating Officer, Ramesh Dhaka.
(2.) The bare necessary facts, for the purpose of this petition, are that accused-petitioners are facing sessions trial before the learned trial Court for offence under Sections 307, 307/34 IPC and Section 3/30 of the Arms Act. After framing charges against the petitioners, prosecution evidence commenced and Investigating Officer, Ramesh Dhaka appeared in the witness-box as P.W.12. After recording his statements, Public Prosecutor submitted an application on 28th June, 2016 precisely urging that witness P.W.12 be reexamined for marking Articles on incriminating material/weapons lying in Malkhana and the said prayer of the prosecution is declined by the learned trial Court by its order dated 11th of July, 2016. Later on, Public Prosecutor submitted an application under Section 311 Cr.P.C., for recalling prosecution witness (P.W.12) Ramesh Dhaka with a view to mark Articles on seized materials during investigation. The prayer made, on behalf of the prosecution, is opposed by the petitioners. However, the learned trial Court, while acceding to the prayer of the prosecution, allowed its application by the impugned order.
(3.) Learned counsel for the petitioners, Mr. H.M. Saraswat, submits that earlier when the prayer of the prosecution was declined by the learned trial Court, it was not at all desirable from the learned Court below to have acceded to the prayer of the prosecution under Section 311 Cr.P.C. Learned counsel further submits that prosecution has availed many opportunities to tender its evidence, and therefore, the learned trial Court ought to have considered prayer of the prosecution objectively. Elaborating his submissions, learned counsel has urged that the issue has not been properly examined by the learned trial Court while passing the impugned order, which has resulted in miscarriage of justice warranting interference in exercise of inherent powers of this Court. Lastly, learned counsel has urged that powers under Section 311 Cr.P.C., cannot be invoked for filling up lacuna in the prosecution evidence and furthermore if witness is recalled, the same would result in serious prejudice to the accused-petitioners inasmuch as there will be no chance for them to cross-examine the witness who has seized the incriminating materials. In support of his contentions, learned counsel for the petitioners has placed reliance on following judgments:- Prabhu Ram @ Prabhulal V/s. State of Rajasthan, 1997 CrLR 777 Narayan Das S/o Dwarka Das V/s. Union of India, 1996 CrLR 249 Karan Singh V/s. State & Anr. - S.B. Criminal Misc. Petition No.3662/2015 decided on 09.08.2016 Per contra, learned Public Prosecutor submits that Section 311 Cr.P.C., envisages discretionary powers on the court to summon material witness or examine person present including recalling of witness and if the discretion has been exercised by the learned trial Court judiciously, the same is not liable to be interfered with in exercise of inherent powers of this Court. Learned Public Prosecutor further submits that not marking Articles on the seized incriminating material during investigation was a bona-fide error and as such endeavour made by the prosecution for recalling of witness has been appropriately acceded to by the learned trial Court, which from no stretch of imagination can be categorized as filling up of lacuna in prosecution evidence. In support of his contentions, learned Public Prosecutor has placed reliance on following judgments:- Mannan SK. Ors. V/s. State of West Bengal & Anr., 2014 2 WLC(SC) Cri. 258] Mahesh Chand Khandelwal V/s. Surendra Kumar Dad, 2010 2 WLC(Raj) 704 .;