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TMI Blog1992 (9) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 313 of the Code of Criminal Procedure (Hereinafter the, 'Code'). Defence examined one witness and closed its case and the case was adjourned for arguments. At this stage on 5.3.1992, the petitioner, who is the mother of the deceased, presented an application under Section 301, 231 (2) read with Section 311 of the Code for recalling the aforesaid two witnesses for further examination on the ground that the then Public Prosecutor had failed to discharge his duties properly in omitting to seek Court's permission to cross-examine them notwithstanding their statements which virtually amounted to disowning of the prosecution case. A report was made against the then Public Prosecutor and the administration accepted the gist of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and ran away along with non-applicant No. 3. The deceased Shakeel Hyder was taken to the Police Station where he lodged the F.I.R. He was then sent to Victoria Hospital where Asstt. Surgeon Dr. D.C. Kumar (P.W. 3) examined him vide report Ex. P. 2 and referred him to Medical College Hospital, Jabalpur, where he succumbed to his gun shot injuries on 15.6.1990. The post-mortem report (Annex.-1) and the dying declaration recorded by an Executive Magistrate (Annex.-2) show that shakeel Hyder died of gun shot injuries. The statement of Kailash Chandra, owner of Kailash Pan Shop, was recorded under Section 161 of the Code (Annexure-3) wherein he has stated: Hindi Matter In the Court, he has given an entirely different version in his examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner in which they should he exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the Court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper, of of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code. In absence of cross-examination of the aforesaid two witnesses by the prosecution, there remains no ground on which the prosecution may assail their credibility during the course of arguments. Thus, the second circumstance urged by the lower Court to refuse prosecution's prayer in this behalf is also misconceived. Delay by itself in view of the wordings of Section 311 of the Code can, for obvious reasons never be a good ground to refuse a prayer for recalling of a witness where the same is necessary for a just decision of the case. The aforesaid facts and circumstances clearly warrant recall of these two witnesses to enable the prosecution to put questions to them in the nature of cross-examination for a just decision in the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X
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