2015 (1) TMI 1496 - HC - Indian Laws

Maintainability of Revision - order passed under Section 311 of Cr.P.C. is an interlocutory order or not - prosecution under Section, 311 of, Cr.P.C. to call Dr. Anoop, Verma (P.W. 10) for reexamination - HELD THAT - Admittedly, application under Section 311 of Cr.P.C. was filed on the date when, the case was fixed for judgment. It is, made clear that whenever such kind of illegal orders are passed and brought to the notice of the superior court then in the interest of justice such kind of orders, may be interlocutory in nature, can be set aside by revisional court - By invoking inherent, powers under Section 482 of Cr.P.C. such type of mistake committed by passing the illegal order can be corrected by this Court. The impugned order passed by the courts below are hereby set aside - petition allowed.

Summary

Issues:
Petition under Section 482 of Cr.P.C. to quash orders of Revisional Court and trial court; Application under Section 311 of Cr.P.C. for re-examination of witness; Challenge of interlocutory order in revision; Interpretation of Sections 311 and 353(1) of Cr.P.C.; Legality of trial court's order; Exercise of inherent powers under Section 482 of Cr.P.C.

Analysis:
The petitioners sought relief under Section 482 of the Code of Criminal Procedure to quash the orders passed by the Revisional Court and the trial court. The case involved the petitioners facing trial for various offences under IPC. After the prosecution's case was closed, an application was filed under Section 311 of Cr.P.C. to recall a witness for re-examination due to discrepancies in the evidence regarding a fracture. The trial court allowed the application, which was later challenged in revision. The revisional court dismissed the challenge citing the interlocutory nature of the order under Section 311.

The contention raised was that since the case was already fixed for final judgment, the application under Section 311 should not have been entertained. The petitioners argued that calling witnesses to fill lacunae is not appropriate under Section 311, citing relevant case law. The opposing party defended the trial court's decision, stating that the re-examination was necessary to clarify discrepancies in the evidence. The court noted the arguments presented by both sides.

The court examined the provisions of Sections 311 and 353(1) of Cr.P.C. and held that the trial court's order allowing the application under Section 311 on the date fixed for judgment was contrary to law and illegal. It emphasized the importance of pronouncing judgments immediately after trial termination as per Section 353(1). The court highlighted that such illegal orders can be set aside by the revisional court in the interest of justice.

By invoking inherent powers under Section 482 of Cr.P.C., the court corrected the mistake of passing an illegal order and allowed the petition. The impugned orders of the lower courts were set aside. The court directed that if the witness had been re-examined based on the prosecution's application under Section 311, the recorded evidence should not be considered. The Trial Court was instructed to assess the reliability of expert witnesses' evidence compared to medical documentary evidence. The order was to be communicated to the relevant courts for compliance.