The main legal point established in the judgment is that the power of a trial Court under Section 311 of Cr.P.C. to allow re-examination of a witness for the purpose of conducting cross-examination of such a witness is well within the realm of Section 311 of Cr.P.C.

Judgment

Mr. Sumeet Goel, J.

The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing of order dated 06.12.2023 passed by learned Judicial Magistrate Ist Class, Patti whereby the application filed by the petitioner (herein)-accused, under Section 311 of Cr.P.C. of 1973 for recalling of the witness-Sukhraj Kaur (respondent No.2 herein) for her cross-examination, was dismissed.

2. Learned counsel for the petitioner has argued that the said witness namely Sukhraj Kaur, is a prime witness of the prosecution, being complainant in the FIR in question i.e. FIR No.53 dated 29.10.2015 registered under Sections 406/498-A/120-B IPC at Police Station Khalra in District Tarn Taran, and, therefore, her cross-examination by the petitioner (herein)-accused is pertinent for the defence-side. Learned counsel has further argued that the cross-examination of the said witness being treated as ‘Nil’ is against the basic tenets of law and hence the learned trial Court ought to have allowed the said application.

3. Learned State counsel as also learned counsel for the complainant-respondent No.2 have opposed the instant petition by arguing that sufficient opportunity(s) was provided to the accused for conducting cross-examination of the said witness & the same was adjourned at the instance of the accused as the accused wanted to delay the culmination of trial. It has been further argued that no plausible explanation has been furnished in the said application for recalling the said witness for cross- examination. Therefore, dismissal of the instant petition is prayed for.

4. I have heard learned counsel for the rival parties and perused the paper-book.

5. The prime issue for determination in the present case is as to whether, the application under Section 311 of Cr.P.C. filed by the petitioner- accused (hereinafter referred to as ‘application in question’), ought to have been allowed for recalling the complainant/witness-Sukhraj Kaur for cross- examination. The analogous legal issue that arises for consideration in the present petition is as to what are the parameters for consideration of an application under Section 311 of Cr.P.C., 1973.

Relevant Statute

6. Section 165 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘Evidence Act’) reads as under:

“165. Judge’s power to put questions or order production. ––

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:

Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.”

Section 311 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as Cr.P.C.) stipulates as under:-

“311. Power to summon material witness, 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 not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or re