2010 (3) TMI 1285 - HC - Indian Laws

Summary

Issues Involved:
1. Quashment of the order allowing re-examination of a witness.
2. Allegation of impersonation of a witness.
3. Application of Section 311 of the Code of Criminal Procedure.
4. Examination of the trial court's discretion and duty to summon witnesses.
5. Relevance and application of precedents in similar cases.

Issue-wise Detailed Analysis:

1. Quashment of the Order Allowing Re-examination of a Witness:
The petitioners sought to quash the order dated 24-11-2009 by the 15th Additional Sessions Judge, Jabalpur, which allowed the re-examination of Mohd. Haleem (PW-3). The trial court found that the person who testified as PW-3 on 12-11-2007 was an impersonator, not the actual witness. The court's decision was based on an inquiry and expert opinion confirming the impersonation.

2. Allegation of Impersonation of a Witness:
The case involved allegations that the accused produced an impersonator in place of the material prosecution witness, Mohd. Haleem, on 12-11-2007. This claim was substantiated by an inquiry conducted by CSP Siddharth Choudhary and a handwriting expert's report, which concluded that the signatures did not match those of the real Mohd. Haleem.

3. Application of Section 311 of the Code of Criminal Procedure:
Section 311 of the Code empowers the court to summon or recall witnesses at any stage if their evidence is essential for a just decision. The section is divided into two parts: discretionary ("may") and mandatory ("shall"). The court found that recalling Mohd. Haleem was essential to uncover the truth, justifying the application of Section 311.

4. Examination of the Trial Court's Discretion and Duty to Summon Witnesses:
The court emphasized that it is the duty of the trial court to ensure justice by summoning essential witnesses. The trial court's decision to recall Mohd. Haleem was deemed necessary to rectify the impersonation and ensure a fair trial. The court noted that the discretionary power under Section 311 must be exercised judiciously and is essential for the just decision of the case.

5. Relevance and Application of Precedents in Similar Cases:
The petitioners cited the cases of Zahira Habibullah Sheikh and Satyajit Banerjee to argue against the re-examination. However, the court distinguished these cases, noting that the extraordinary circumstances in Zahira Habibullah Sheikh (Best Bakery case) did not apply here. The court reiterated that Section 311's purpose is to prevent a miscarriage of justice by allowing the recall of witnesses when necessary.

Conclusion:
The court concluded that the trial court's order to recall Mohd. Haleem was justified and necessary to ensure a fair trial. The petitions to quash the order were dismissed, affirming the trial court's decision to re-examine the genuine witness under Section 311 of the Code of Criminal Procedure. The judgment emphasized the court's duty to uncover the truth and ensure justice, supporting the trial court's discretion in recalling the witness.