Criminal Misc. No. M-18081 of 2011 (O&M) v. State of Haryana & Anr.

HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Anshumaan Dalal, Advocate, for the petitioner. Mr. Satyavir Yadav, DAG, Haryana. Mr. Inderpal Singh, Advocate, for respondent No.2. NAWAB SINGH J.(ORAL) This petition has been filed under Section 482 of Code of Criminal Procedure seeking quashing of order dated May 3rd, 2011 passed by Additional Sessions Judge, Rohtak whereby application filed by the accused-petitioner under Section 311 of Code of Criminal Procedure for re-calling Sunil-complainant for further cross-examination, was dismissed.

The petitioner is facing trial in case bearing First Information Report No.257 dated April 20th, 2008 under Sections 307, 341 and 506 read with Section 34 of Indian Penal Code and Section 25(1) of Arms Act, 1959. During trial, petitioner-accused moved an application under section 311 of the Code for re-calling Sunil- complainant for further cross-examination.

The petitioner seeks re-call of the complainant on the ground that now he has compromised the matter with the complainant. In this regard, compromise-deed (Annexure P-2) has also been placed on record. It has been urged by learned counsel for the petitioner that since the matter has been compromised, continuance of trial will be a futile exercise. Criminal Misc. No. M-18081 of 2011 (2)

Section 311 of the Code contains a salutary provision that in cases where the evidence of a witness appears to be essential for the just decision of the case, the Court must recall such a witness for the purpose of re-examination, cross examination or for further examination. No doubt, a discretion has been conferred on the Court to summon any person as a witness but simultaneously, an obligation is also cast on the Court to record a conclusion that for just decision of the case, it is essential to recall, re-examine or cross- examine any other witness.

It does not require a microscope to see through the game being played. Complainant supported the prosecution case when he was examined and cross-examined. Now, a compromise has been reached according to own case of the petitioner. What then is the purpose. Petitioner wants that complainant be re-called so that he can resile and give the petitioner a clean chit. Section 311 of the Code has certainly not been enacted for such illegal purposes nor the principle of law “that you shall not make a trade of a felony” can be lightly brushed aside. Great sanctity attaches to judicial proceedings and orders. Courts shall scrupulously avoid being privy to illegal designs. The petition is rather a subterfuge and has nothing to do with the basic and legal object of the provision of law enshrined in Section 311 of the Code.