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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Vinod S. Bhardwaj, J.
Nisha – Appellant
Versus
State Of Haryana & Anr. – Respondents
CRM-M-31015-2020 (O&M)
Decided On : 17-05-2022
Section 311 CrPC - Quashing of Order - Indian Penal Code, 1860 - [FRAUDULENT TRANSACTION, QUASHING OF ORDER, CRIMINAL PROCEDURE CODE, INDIAN PENAL CODE] - The court discussed the provisions of Section 311 and 325 of the Criminal Procedure Code and their interpretation in the context of recalling and re-examining witnesses. The court emphasized that the power under Section 311 should be invoked to meet the ends of justice and exercised for strong and valid reasons with great caution and circumspection. The court also highlighted that the discretionary power under Section 311 should not be exercised if the application is an abuse of the process of law and that additional evidence must not be allowed only to fill up a lacunae in the case of the prosecution or in the advantage or disadvantage of the accused or to cause serious prejudice to the evidence of the accused. The court's decision was based on the lack of valid reasons for recalling the witnesses and the absence of substantial prejudice caused by not questioning the witnesses on the specified aspects.
Fact of the Case:
The case involved a fraudulent transaction in a bank account, leading to the registration of a FIR against the petitioner and others. After the investigation, a final report was filed against the petitioner and co-accused, resulting in a judgment of conviction against the petitioner. The petitioner filed an appeal, and the Sessions Judge set aside the judgment and remanded the case for fresh decision by the Chief Judicial Magistrate. The petitioner then submitted an application under Section 311 CrPC for recalling and re-examining witnesses, which was dismissed by the Chief Judicial Magistrate. The petitioner challenged this decision in the High Court.
Finding of the Court:
The court found that the application under Section 311 CrPC lacked valid reasons for recalling the witnesses and did not demonstrate substantial prejudice caused by not questioning the witnesses on the specified aspects. The court emphasized that the power under Section 311 should be invoked to meet the ends of justice and exercised for strong and valid reasons with great caution and circumspection. The court also highlighted that the discretionary power under Section 311 should not be exercised if the application is an abuse of the process of law and that additional evidence must not be allowed only to fill up a lacunae in the case of the prosecution or in the advantage or disadvantage of the accused.
Issues: The main issue was whether the application under Section 311 CrPC for recalling and re-examining witnesses should be allowed by the court.
Ratio Decidendi: The court's decision was based on the lack of valid reasons for recalling the witnesses and the absence of substantial prejudice caused by not questioning the witnesses on the specified aspects. The court emphasized that the power under Section 311 should be invoked to meet the ends of justice and exercised for strong and valid reasons with great caution and circumspection. The court also highlighted that the discretionary power under Section 311 should not be exercised if the application is an abuse of the process of law and that additional evidence must not be allowed only to fill up a lacunae in the case of the prosecution or in the advantage or disadvantage of the accused.
Final Decision: The court dismissed the petition, upholding the decision of the Chief Judicial Magistrate to dismiss the application under Section 311 CrPC for recalling and re-examining witnesses.
JUDGMENT
Vinod S. Bhardwaj, J. - The present petition invokes the jurisdiction of the High Court under Section 482 Code of Criminal Procedure (hereinafter referred to as 'CrPC') for quashing of the order dated 16.03.2020 (Annexure P-1) passed by Chief Judicial Magistrate, Rohtak, whereby the application dated 28.11.2019 (Annexure P-2) submitted by the petitioner under Section 311 CrPC in case FIR No.325 dated 02.08.2014 registered under Sections 420, 406, 419, 467, 471 and 120-B Indian Penal Code, 1860 (hereinafter referred to as 'IPC') at Police Station City Rohtak has been dismissed.
2. Briefly the facts of the case are being enumerated as under:-
i. A complaint dated 02.08.2014 (Ex. PW-2/A) was submitted by B.S. Sodi, Manager of the SBI, Anaj Mandi Branch, Rohtak with regard to a fraudulent transaction in a sum of Rs.30,000/- from the account of Azad Singh on 01.08.2014 that led to registration of the FIR against the petitioner along with others.
ii. After conclusion of the investigation, a final report was filed against the petitioner as well as co-accused Mayank, Praveen and Rohit Kumar, whose names figured in the disclosure statement of petitioner.
iii. FSL report was received by the Police on 16.12.2014, pointing out that character of the specimen writing of the petitioner matched with the disputed writing. Eventually, on consideration of the evidence produced by the respective parties, the Judicial Magistrate First Class, Rohtak found that the petitioner and the co-accused were guilty. Apparently, after recording a finding of conviction against the petitioner-accused, the case as well as accused were sent before the Chief Judicial Magistrate, Rohtak for passing of a severe sentence under Section 325 CrPC. The accused were thereafter heard by the Additional Chief Judicial Magistrate, Rohtak and sentenced to simple imprisonment for 3 years for each of the offences. All the sentences were ordered to run concurrently.
iv. The said order of conviction as well as sentence was challenged by the petitioners by means of filing an appeal before the Court of Sessions. It was also pointed out that reference made to the Chief Judicial Magistrate under Section 325 CrPC was faulty, inasmuch as the Magistrate had already recorded judgment of conviction against the petitioner whereas a Magistrate is only required to form an opinion of the accused being guilty and thereafter submit his proceedings and forward the case to the Chief Judicial Magistrate for passing an appropriate order of sentence. It is, thereafter, the prerogative and domain of the Chief Judicial Magistrate to pass final judgment and sentence or such order as he thinks fit. In the said process, he may examine the parties afresh, recall and examine any witness who had already disposed and may also call for or take any further evidence under Section 325(3) CrPC.
v. The appeal filed by the petitioners bearing Criminal Appeal Nos.110 of 2017; 109 of 2017 and Criminal Revision No.75 of 2017 were heard together. The Sessions Judge, Rohtak allowed the appeal preferred by the petitioner and set aside the judgment dated 09.03.2017 passed by the Judicial Magistrate First Class, Rohtak and order of sentence dated 24.03.2017 passed by Additional Chief Judicial Magistrate, Rohtak to be not sustainable and being bad in law and ordered that the judgment dated 09.03.2017 passed by the Judicial Magistrate First Class, Rohtak be treated as an opinion only and not as a judgment of conviction.
vi. The case was accordingly remanded to the Chief Judicial Magistrate, Rohtak by the Sessions Judge, Rohtak vide his judgment dated 20.08.2019 with a direction to treat the said judgment dated 09.03.2017 as an opinion and that the Chief Judicial Magistrate shall hear the parties, recall any witnesses, who have already deposed and take such further evidence, which he considers proper and appropriate and as mentioned in Section 325 CrPC and thereafter decide the case as per law. The matter was thereafter put u
The main legal point established in the judgment is that the power under Section 311 of the Criminal Procedure Code should be invoked to meet the ends of justice and exercised for strong and valid re....
The discretionary power under Section 311 CrPC should be exercised judiciously and only if the evidence is essential to the just decision of the case.
The court affirmed that under Section 311 CrPC, the recall of witnesses is permissible to ensure justice and allow the accused to present a complete defence, emphasizing the necessity of evidence for....
A change of counsel does not justify recalling a witness for further cross-examination; sufficient grounds must be shown to avoid delaying proceedings.
The court emphasized that the power to recall witnesses under Section 311 Cr.P.C. must be exercised judiciously, ensuring it is essential for a just decision and not merely to fill gaps in evidence.
The court emphasized that the power to recall witnesses under Section 311 Cr.P.C. must be exercised judiciously, ensuring it is essential for a just decision and not merely to fill gaps or delay proc....
The court upheld the dismissal of an application to recall a witness under Section 311 Cr.P.C., emphasizing the need for judicious use of this power to ensure fair trials without unnecessary delays.
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