Sharafat Khan And Ors vs State

The petitioner has preferred this misc. petition under Section 482 of Cr.P.C. for the following prayer :-

"It is, therefore, most respectfully prayed that this misc. petition may kindly be allowed and the impugned order dated 21.5.2019 passed by learned ADJ No.1, Bhilwara in Sessions Case No.173/2015 titled as "State Vs. Sharafat Khan & Ors.," may kindly be quashed and set aside and the application filed by the prosecution under Section 311 Cr. P.C., before the learned trial court may kindly be dismissed."

Counsel for the petitioner has shown application preferred by learned Public Prosecutor, which is Annex.2 dated 09.5.2019, to show that the application speak of certain articles exhibited were required to be taken on record.

Counsel for the petitioner submits that the application does not speak a single word about the nature of article.

Counsel for the petitioner further drawn attention of Court to Section 136 of the Evidence Act as well as the precedent law in Inder Sain Vs. C.B.I., Sector 40-A, Chandigarh reported in 2019(2) Criminal Copurt Cases 705 (P&H), relevant portion whereof reads as under :-

"The object of the Court is to discover truth. Section 311 of the Code is one of such provisions of the Code which strengthens the arms of a Court in making efforts to get the truth by procedure sanctioned by law. It empowers the Court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or to examine any person in attendance, though not summoned as witness or recall and reexamine already examined witness. The second part of the Section uses the word 'shall'. It says that the court shall summon and examine or recall or reexamine any such person if his evidence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The court is to form an opinion that for the just decision of the case recalling or re- examination of the witness is necessary."

Learned Public Prosecutor while opposing admits that in the application no article is specified and also relevance of the article has not been discussed.

This Court in a limited intervention remands the matter to the learned court below and while quashing the order dated 21.5.2019 permits learned Public Prosecutor to file fresh application and directs the learned court below to decide the application expeditiously while considering relevance of the evidence in-question before the evidence of the accused starts.