In CRR-834-2021-PUNJ HC- Not appropriate to decline summoning of witness merely on score that witness's statement under Section 161 CrPC was not recorded: P&H HC
Justice Vivek Puri [16-02-2023]

Read Order: State of Haryana v. Vinod Kumar and another

Monika Rahar

Chandigarh, February 22, 2023: Recently, the High Court of Punjab and Haryana has held that it shall not be appropriate to decline the summoning of the witness merely on the score that the statement of the witness under Section 161 of the Code has not been recorded. 

"The effect thereof, if any, is to be seen at the appropriate stage of the trial", the Bench of Justice Vivek Puri held. 

The petitioner has assailed the order of the Trial Court via which application under Section 311 of the Code of Criminal  Procedure (Cr.P.C) filed by the prosecution, was dismissed.

The first two respondents were facing trial for having committed the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) as 80 grams and 60 grams of smacks respectively, were recovered from their conscious possession. The prosecution evidence was concluded, but inadvertently,  the name of two witnesses could not be mentioned in the list of witnesses. 

The case property was retained in the malkhana by one of those witnesses while the other had carried the sample parcel to the laboratory for chemical examination. The examination of both the witnesses was essential for the just decision of the case. It was not the case that the witnesses were introduced subsequently. The aforesaid witnesses were required to be examined to complete the link evidence.

The Trial Court had primarily dismissed the application on the score that the proposed witnesses were never joined during investigation and their statements under Section 161 of the Code were not recorded.  Furthermore, it was observed that the prosecution kept on sleeping over the matter after recording the statements of the 06 witnesses and the evidence was closed by the  public prosecutor.

After hearing the parties, the Court observed that the permission to lead additional evidence in the Trial Court has to be granted on the touchstone of the provisions of Section 311 of the Code. 

The Bench further added that the recourse to Section 311 of the Code is to be resorted only with an object of finding out the truth and  procuring the proof of fact which may lead to just and correct decision of the case. Section 311 of the Code enables the Court with the power to summon, recall and re-examine any witness, who has already been examined. 

"This section confers a wide discretion on the Court to act as the exigencies of justice and the circumstances of the case may require. The Court can summon any witness, if the examination of such witness appears to be essential for the just decision of the case", the Bench added while also asserting, 

"However, it has also to be borne in mind that such power cannot be exercised to permit any of the parties to fill up lacuna in its case. There must be sufficient and reasonable material to justify for exercise of the discretionary power vested in the Court."

The Bench further observed that it shall not be appropriate to decline the summoning of the witness merely on the score that the statement of the witness under Section 161 of the Code has not been recorded. The effect thereof, if any, is to be seen at the appropriate stage of the trial, the Court held. 

"Furthermore, merely because the  prosecution evidence has been closed cannot be termed to be a circumstance to decline the summoning of the witnesses. Section 311 of the Code is amply clear to the effect that the power can be exercised at any stage of the proceedings", the Bench opined. 

Adverting to the present case, the Court held that the proposed evidence was essential for the just decision of the case and it could not be said that an attempt was being made to fill up the lacuna of the prosecution evidence.

Thus, the present petition was allowed.