The central legal point established in the judgment is the legal obligation of the trial court, as per Section 311 of the Code of Criminal Procedure, to recall essential witnesses for the just decision of the case, particularly when their statements are important in support or against the prosecution story.

ALOK SINGH, J (ORAL)

CRM No.56642 of 2010

For the reasons given, delay of four days in filing the revision is condoned.

CM stands allowed. CRR No.2916 of 2010

1. Present petition is filed assailing the order dated 22.7.2010 passed by revisional Court/Additional Sessions Judge, Fast Track Court, Ludhiana, thereby allowing the revision petition filed by accused respondents No.2 to 9 herein.

2. Brief facts of the present case are that after investigation, police has submitted challan against the accused under Sections 430, 148, 149, 506 of the Indian Penal Code. In the challan, prosecution has cited Maghar Singh and Babu Singh as eye-witnesses. During the trial, CRR No.2916 of 2010 (O&M) -2witnesses Maghar Singh and Babu Singh were summoned, however, due to want of service on them, they could not appear before the learned trial Court for recording of their statements. Ultimately, trial Court vide order dated 6.2.2009 has closed the evidence of the prosecution.

3. An application under Section 311 Cr.P.C. was moved by the prosecution for reclling the witnesses Maghar Singh and Babu Singh, who have been cited as eye-witnesses in the challan, which was initially allowed by the learned Magistrate vide order dated 17.4.2009, however, revision therefrom was allowed by learned Sessions Judge vide impugned judgment.

4. I have heard the learned counsel for the parties and have perused the record.

Section 311 of the Code of Criminal Procedure reads as under:

“311. Power to summon material witnesses, or examine person present. - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though no summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

5. As per the dictum of this Court in Nihal Singh Vs. State of Punjab Crl. Revision No.49 of 2011 decided on 10.1.2011 and Rajinder Kumar Vs. Vijay Kumar, Crl. Revision No.2907 of 2010 decided on 24.1.2011, Section 311 Cr.P.C. is in two parts. First part of Section 311 Cr.P.C. gives discretionary powers to the trial Court while second part of the Section cast obligation on the trial Court to recall any witness for the examination/cross-examination, if Court finds that statements of those witnesses shall be important in support or against prosecution story.

6. Undisputedly, Maghar Singh and Babu Singh were cited as eye-witnesses in the challan. Undisputedly, summons were issued to both the witnesses so many times. Undisputedly, summons were never served on the witnesses. Undisputedly, no bailable or non-bailable warrants or coercive steps were taken against the witnesses compelling them to appear in the witness box. Non-appearance of the witnesses for want of service of summons or non-appearance of the witnesses despite of the service of the summons shall not give any jurisdiction to the Court to close the evidence of the prosecution, rather Court must take coercive actions against those witnesses, who failed to appear despite of the service of the summons compelling them to appear before the Court for the recording of this statements. Closing of evidence in such an event would be totally unjustified. Therefore, if eye-witnesses, as cited in the challan, are not examined, then Court shall be under the legal obligation in part II of Sections 311 Cr.P.C. to recall them for recording of their statements. Learned revisional Court ought not to have reversed the order of the learned trial Court.

7. Present petition is allowed. Order passed by learned Sessions judge is set aside and of learned Magistrate is restored.

8. Parties are directed to appear before the learned trial Court on 15.2.2011. On that day, learned trial Court shall proceed with the trial in accordance with law.

Petition allowed.