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Re-examination of a witness u/s311 CRPC-Not to be denied only because case is not covered u/s138 Evidence Act-criteria u/s311 CRPC different than criteria for Sec-138 Evidence Act.- High Court of Punjab and Haryana.

Re-examination of a witness u/s311 CRPC-Not to be denied only because case is not covered u/s138 Evidence Act-criteria u/s311 CRPC different than criteria for Sec-138 Evidence Act.- High Court of Punjab and Haryana.

Section 311 of CrPC defines the “Power to summon material witness, or examine person present”. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance. The landmark judgement passed by the single bench of HON’BLE JUSTICE RAJBIR SEHRAWAT in BHUPINDER KAUR VS STATE OF PUNJAB (CRM-M-38052-2013(O&M)) dealt with the issue mentioned above.

In this case the petitioner’s son goes missing, Who was forced to live separately from petitioner by his in laws (wife’s parents) the accused in this case was his son’s father in law who was found last with the victim (son), The petitioner approached the police station after several trial of finding his son, but the police officer denied to register her complain. The petitioner approached the court and then FIR got registered but no action was taken after that. During   trial the portion alleged by the petitioner in the FIR, had not come in her deposition, the petitioner moved an application under Section 311 CrPC for permitting her to be re-examined. This application was dismissed by the trial Court. Therefore, the present revision petition has been filed.

The learned counsel for the petitioner mentioned that mentioned that she had disclosed the sequence of the facts before the trial Court a the petitioner being a widowed lady of old age, who had lost her only son had not properly understood the import of deposition made by her, objection raised by the public prosecutor and the effect of omission in her deposition. The interest of justice would be severely impaired and further contended by the counsel for the petitioner that the trial Court has totally misunderstood inter se import of Section 311 CrPC and Section 138 of the Indian Evidence Act. Therefore, the trial Court has considered only Section 138 of the Indian Evidence Act.

The learned counsel for the state contended submitted that the trial Court has rightly dismissed the application and stated that examination-in-chief and the cross-examination are absolute and there is nothing in her cross-examination which requires her to be re-examined as per Section 138 of the Indian Evidence Act. Hence, the present petition deserves to be dismissed

The Hon’ble court analyzed the facts of the present case and the arguments of both the parties and opined that “this Court finds that the trial Court has dismissed the application filed by the petitioner merely on the ground that the case of the petitioner is not covered under Section 138 of the Indian Evidence Act. This is not correct application of Section 311 CrPC by the trial Court. The trial Court is primarily concerned with arriving at the truth about the facts in issue. Therefore, the parameters for exercising powers under Section 311 CrPC. are well defined. the petition is allowed. The trial Court is directed to grant one effective opportunity to the petitioner to get herself re-examined.”

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Judgement Reviewed by Pratikshya Pattnaik

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