The wide powers conferred upon the courts under Section 311 CrPC to summon or recall a witness at any stage if their evidence is essential for a just decision.

Sandeep Sharma, J.

Being aggrieved and dissatisfied with order dated 17.1.2018 passed by learned Special Judge, Chamba, District Chamba, Himachal Pradesh, in Cr.MA No. 97/18 in Sessions Trial No. 8/17, whereby application having been filed by the respondent-State under Section 311 CrPC for re-summoning and reexamination of PW-1 Sanjay Kumar and PW-2 Hoshiar Singh came to be allowed, petitioner-accused (hereinafter referred to as ‘petitioner’) has approached this Court by way of instant petition praying therein for quashing of impugned order referred to herein above.

2. For having a bird’s eye view of the matter, necessary facts as emerge from the record are that an application bearing Cr.MA No. 97/18 came to be filed under Section 311 CrPC on behalf of the State seeking therein permission of the court to re-summon and reexamine PW-1 and PW-2, names whereof have been referred herein above. Averments contained in the application i.e. annexure P-1 reveal that at the time of investigation, Investigating Officer had initiated process for pre-trial disposal of case property in terms of provisions contained under Section 52A of the Narcotic Drugs & Psychotropic Substances Act (hereinafter, ‘Act’), but before said process could be completed, charge sheet came to be filed against the accused within stipulated period. Since process initiated for pre-trial disposal of case property was pending, necessary disposal certificate could not be issued by competent authority and case property was also not destroyed.

3. On 27.5.2017, PW-1 Sanjay Kumar and PW-2 Hoshiar Singh were examined but on account of pending process of pre-trial disposal and also on account of bona fide belief that proceedings under Section 52A of the Act had been completed and further on account of non-availability of case property on that day, same could not be put to witnesses named above for identification. Factum with regard to aforesaid omission on the part of the prosecution came to the fore at the time of recording of examination of PW-6, whereafter, application for re-examination of PW-1 and PW-2 for limited purpose of identification of case property came to be instituted on behalf of the State.

4. Petitioner, while opposing aforesaid application disputed the averments contained in the same and stated before the Court that application has been moved solely with a view to fill up lacuna/omission on the part of prosecution in getting the case property identified from PW-1 and PW-2, who happened to be members of patrolling party, which had allegedly seized contraband from the conscious possession of the petitioner.

5. Learned trial Court taking note of aforesaid pleadings proceeded to allow the application filed under Section 311 CrPC vide order dated 17.1.2018 and allowed the re-examination of witnesses namely PW-1 Constable Sanjay Kumar and PW-2 Constable Hoshiar Singh. In the aforesaid background, petitioner has approached this Court, laying therein challenge to order dated 17.1.2018.

6. Mr. Nimish Gupta, learned counsel representing the petitioner, while inviting attention of this Court to the provisions contained in Section 311 CrPC, made a serious attempt to persuade this Court to agree with his contention that impugned order passed by learned Court below is not sustainable as the same is not in conformity with the provisions of law. While fairly conceding that in terms of Section 311 CrPC, court enjoys vast power to summon, re-examine or recall a witness at any stage of proceedings, learned counsel representing the petitioner contended that such power can not be exercised by a court to permit applicant to fill up lacuna in the prosecution case. Mr. Gupta further contended that the explanation rendered in the application for reexamination of PW-1 and PW-2 is not plausible because factum with regard to existence of case property was very much in the knowledge of prosecution and as such failure on its part to get the case property identified from PW-1 and PW-2