Rajesh Kumar & Ors. v. State of Haryana & Anr.

Present: Mr.Jitender Dhanda, Advocate, for the petitioners. Mr.Satyavir Singh Yadav, DAG, Haryana. None for respondent No.2. **** SABINA, J. This petition has been filed by the petitioners challenging order dated 15.5.2009 passed by the Additional Sessions Judge, Hisar, whereby the application moved by the petitioners under Section 311 Cr.P.C. to summon PWs Anil and Gagan @ Gaggi for re-examination to enable them to establish the factum of compromise between the parties, was dismissed. Learned counsel for the petitioners has submitted that the prayer of the petitioners, in the petition filed by them seeking quashing of the FIR on the basis of compromise, was declined by this Court on the ground that the trial was virtually complete. Crl.Rev.No. 2207 of 2009 2 However, the trial Court was directed to consider the compromise effected between the parties, while passing the order of sentence in case the petitioners were convicted for offence regarding which charge had been framed against them. In support of his arguments, learned counsel for the petitioners has placed reliance on Baljit and others vs. State of Haryana and another 2009 (2) RCR (Criminal) 178 (Annexure P-4), wherein in para 7 it was held as under:- “In the mandatory part of Section 311 ibid, the paramount consideration being the doing of justice to the case, the Court can and ought to examine witness at any stage (even when it proceeds to write judgment), whenever it considers the evidence essential. If it results in what is called, “feeling of loopholes”, i.e., purely subsidiary factor. Law confers a power in absolute terms to be exercised at any stage of the trial to examine a witness and makes this duty and obligation of the Court provided the just decision of the case demands it. The present one is such a case, wherein the learned trial Court seems to have adopted such a course which is fraught with the danger of defeating justice. The power under Section 311 of Cr.P.C is given to prevent miscarriage of justice. If the Court finds that the new evidence is essential to the just and proper decision of the case, it is obligatory to admit it at any stage of the proceeding, however, late. If valid Crl.Rev.No. 2207 of 2009 3 reasons are made out, the Courts may allow any of the parties to call new evidence at any stage; or it may suo motu call any witness if it is considered essential in the interest of justice. The affidavits herein this case sought to be tendered may be deemed to be new evidence. When accused moves an application under Section 311 of Cr.P.C for recalling the witnesses, the same should be allowed, if accused wants to bring to the notice of the Court, the matter which can be said to be relevant for the purpose of deciding the case. Of course, rejection of application for recalling witnesses being interlocutory is not revisable, but in proper case order could be set aside under Article 227 of the Constitution of India. The present one being a proper case, the impugned order can be set aside in view of the said provision of law.” Learned State counsel, on the other hand, has opposed this petition. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed. Section 311 Cr.P.C. reads as under:- “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 Crl.Rev.No. 2207 of 2009 4 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 recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” As per the above provision, the Court at any stage of trial may summon any person as a witness or recall and re-examine any person already examined if it is necessary for the just decision of the case. In the present case, during the pendency of the trial, parties have amicably settled the dispute. The petitioners had approached this Court seeking quashing of the FIR on the basis of compromise. Vide order dated 29.4.1997 passed in CRM-M No.2389 of 2009, the said request was declined as the trial was virtually complete. However, the trial Court was directed to consider the compromise effected between the parties, while passing the order of sentence in case the petitioners were convicted for offence regarding which charge had been framed against them. Learned trial Court has failed to appreciate the said direction given by this Court. Learned trial Court has also failed to correctly interpret the order passed by this Court. In case the witnesses, now sought to be re-examined, are not summoned, the factum of compromise sought to be established by the petitioners will not be proved on record and hence, the same will not be considered by the trial Court in terms of the order passed by this Court in CRM-M No.2389 of 2009. By re-examining PWs Anil and Gagan @ Gaggi, the petitioners want to bring on record a relevant Crl.Rev.No. 2207 of 2009 5 fact, which would be necessary at the time of passing of the order of sentence in case the petitioners are convicted for the offence regarding which charge had been framed against them. Accordingly, this petition is allowed. Impugned order dated 15.5.2009 is set aside. Consequently, the application moved by the petitioners under Section 311 Cr.P.C. seeking recalling of PWs Anil and Garan @ Gaggi to the extent of establishing factum of compromise effected between the parties is allowed. September 09, 2010 SABINA) JUDGE