Darbara Singh vs State of Punjab and Others

M.M.S. Bedi, J.—The petitioner is facing trial in FIR No. 42 dated 14.04.2002, under Sections 419,420,467,468,471,120B IPC, registered at Police Station Zira, District Ferozepur. Vide impugned order dated 09.12.2010 the trial court has allowed an application u/s 311 Cr.P.C., filed by the State, permitting the production of certified copy of judgment dated 14.11.2009 wherein the civil court has given its finding regarding the disputed power of attorney dated 28.12.1992 in Civil Suit titled ''Amarjeet Kaur Vs. Mukhtiar Singh and others''. The petitioner has submitted that the said judgment is not part of the record u/s 173 Cr.P.C. and that the said document cannot be permitted to be produced in evidence to fill in lacuna of the prosecution evidence specially when prejudice is likely to be caused with production of the document.

I have heard learned counsel for the petitioner and learned State counsel as well as learned counsel for respondent No. 2.

It is settled principle of law that in exercise of power u/s 311 Cr.P.C. Magistrate has got power to recall or to summon any person as a witness, if his evidence, appears to be essential for the just decision of a case. u/s 91 Cr.P.C. a Court has got power to permit the production of any document which appears to be necessary for the just trial of the case. The trial court in exercising the said power disallowed the document to be taken on record. It appears that judgment dated 14.11.2009 was acquired only after the production of challan. It will be premature to express any opinion regarding the admissibility of the said document for the purpose of determining the controversy. But, it is observed that since the document, produced on the record, is per se admissible being the judgment passed by the court, it will be open to the petitioner to challenge the admissibility, relevance and mode of proof of said document, at the time of the final arguments. The right of the petitioner to produce the evidence to rebut the documents produced by the opposite party will also not be prejudiced in any manner. It will be open to the petitioner to establish by leading defence evidence, if any appeal is pending against the said judgment or the said judgment has been set aside in appeal by any court of higher jurisdiction. If any other judgment has been permitted to be produced on record, the rights of the petitioner to challenge the admissibility, relevance etc. will also not be prejudiced. Petition stands disposed of. Parties are directed to appear before the trial court.