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2018 (3) TMI 1955 - HC - Indian Laws


Issues Involved:
1. Legality of the order dismissing the application under Section 311 CrPC.
2. Application of Section 311 CrPC for recalling and re-examining a witness.
3. Allegations of filling up lacuna in the defense.
4. Judicial discretion and fairness in trial.

Detailed Analysis:

1. Legality of the order dismissing the application under Section 311 CrPC:
The petition challenged the order dated 18.8.2017 by the Judicial Magistrate First Class, Manali, which dismissed the accused's application under Section 311 CrPC. The accused contended that the order was illegal and contrary to the law laid down by the Apex Court and this Court. The accused argued that the court below did not apply its mind while passing the impugned order, making it necessary to quash and set aside the same.

2. Application of Section 311 CrPC for recalling and re-examining a witness:
Section 311 CrPC empowers the court to summon, recall, or re-examine any person if their evidence is essential for the just decision of the case. The court enjoys vast power to summon any person as a witness or recall and re-examine a witness at any stage of inquiry, trial, or proceedings under the Code. The objective is to ensure no failure of justice due to mistakes by either party in bringing valuable evidence or leaving ambiguities in witness statements. The Hon'ble Apex Court and this Court have consistently held that the paramount consideration is to do justice to the case.

3. Allegations of filling up lacuna in the defense:
The complainant opposed the application, alleging it was filed to fill up lacuna in the defense and to delay the proceedings. However, the court noted that the accused's counsel had inadvertently omitted to put certain suggestions to the complainant due to personal reasons, and the failure to cross-examine on material points was not intentional. The court emphasized that the objective of Section 311 CrPC is to discover the truth and render a just decision, and the accused should be allowed to correct inadvertent mistakes.

4. Judicial discretion and fairness in trial:
The court reiterated that a fair trial is the main object of criminal jurisprudence, and it is the duty of the court to ensure fairness is not hampered or threatened. The court must exercise its wide discretionary power under Section 311 CrPC judiciously and not arbitrarily. The court must be magnanimous in permitting corrections of inadvertent mistakes to ensure justice. The court observed that the impugned order did not reflect an attempt to form an opinion on whether the re-examination of the complainant was necessary for the just decision of the case.

Conclusion:
The court concluded that the impugned order was not in consonance with the provisions of law and the principles laid down by the Apex Court and this Court. The court quashed and set aside the impugned order, allowing the accused's application under Section 311 CrPC to re-examine the complainant. The court directed the matter to be listed before the court below for re-examination of the complainant and emphasized that no further opportunity would be granted if the accused failed to cross-examine the complainant on the given date.

 

 

 

 

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