The court determines that the discretionary power under Section 311 CrPC for summoning witnesses must be exercised judiciously; prior inconsistent evidence negates the necessity for re-examination.

JUDGMENT

Umesh Chandra Sharma, J.

Heard Sri Dhirendra Kumar Srivastava, learned counsel for the applicant, learned AGA for the State and perused the record.

2. This application has been moved by the applicant to quash the order dated 03.05.2005 passed by Additional District and Sessions Judge, Court No.12, Varanasi in ST No.535 of 2002 ( State v. Bafati ), under Sections 363, 366, 376 IPC, Police Station Lohta, District Varanasi, whereby the learned trial court allowed the application 77kha and summoned the victim PW-3 for re-examination under Section 311 CrPC.

3. In brief, facts of the case are that informant Munir moved a written complaint on 24.04.2001 that on 20.04.2001 when his wife Jamila had gone to Dargah Sharif, Akbarpur and he had gone to Lallapura to meet his friend, his neighbourers Nizamuddin, Sirajuddin, Mainuddin sons of Bafati and Bafati himself entered into his house at about 02:00 a.m. In the night of 20.04.2001 they forcefully took away his 14 years old daughter Rizwana. When his niece Kallo opposed, they threatened to shoot her. Till now his daughter has not come back. After return of his wife he is informing the police for taking appropriate action. On the basis of the aforesaid complaint a case under Sections 363, 366A and 506 IPC was lodged against the accused persons and the charge sheet was submitted in the aforesaid sections after the investigation. The case was committed to the court of sessions which was transferred to the Court of ASJ, Court No.12, Varanasi and thereafter it was transferred to the Court of ASJ/Fast Track Court No.1, Varanasi.

4. After recording the evidence of victim PW-3, an application under Section 311 CrPC was moved that the statement of the victim recorded under Section 164 CrPC could not be proved. Hence, the concerned witness be summoned for re-examination to prove the statement under Section 164 CrPC. It has also been averred that during the course of deposition she was so affraid that she had forgotten to depose about the same, hence, it is expedient to recall the witness for proving her statement recorded under Section 164 CrPC.

5. The application was opposed by the defence but it was allowed on the ground that during the course of examination-in-chief, no evidence of the witness could be recorded for proving her statement under Section 164 CrPC and accordingly the application was allowed and the witness was summoned for re-examination.

6. Being aggrieved, the present application has been moved by the accused Sirajuddin that the informant Munir had lodged a false and fabricated FIR on which basis the charge-sheet has been submitted by the IO. The trial court has allowed the application without applying judicial mind just to fill up lacuna of the prosecution case which is illegal, unjust and is liable to the quashed. During the examination of the victim PW-3, she was questioned in respect of her statement under Section 164 CrPC and in fact on the contradiction and omission put by her, there was no justification for the trial court to pass the impugned order. The statement under Section 164 CrPC has not been exhibited but it does not make any difference in the case as the statement under Section 164 CrPC is admissible in evidence under section 80 of the Indian Evidence Act without its formal proof. In the garb of the impugned order now prosecution wants to fill lacuna of the prosecution which cannot be permitted because it will amount to unfair trial, therefore, the impugned order dated 03.05.2005 be quashed.

7. During the course of hearing of this application opposite party no.2 left parvi though a counter affida