Faqir Chand v. State Of Punjab & Others
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*50 "Any court may, at any stage of any inquiry, trial or other proceedings under this code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case." 11.
This Court in the case of 'Om Parkash versus State of Haryana and others, 2015(3) RCR (Criminal) 557', has held as under:- " 10. In the present case, it prima facie seems that prosecuting agency was proceeding on a casual approach but the learned trial court should not have shown its helplessness, in securing the presence of remaining unexamined prosecution witnesses. Instead of closing the prosecution evidence, learned trial court should have taken coercive steps to secure the presence of unexamined prosecution witnesses. Under these circumstances,
it can be safely concluded that the impugned order passed by the learned trial court is patently illegal and the same cannot be sustained.
11. Learned trial court was not at the mercy of the prosecuting agency. In case the prosecuting agency was not taking due interest in prosecuting the case, by producing its witnesses in time, the learned trial court could have secured the presence of the unexamined witnesses by taking appropriate steps, including the coercive steps, if so required.
12. It is equally true that prosecuting agency was under legal obligation and duty bound to produce its witnesses in time, so as to ensure that no undue delay is caused in the trial. Having said that, this Court feels no hesitation to conclude that since the material witnesses namely ASI Sudhinder Kumar and HC Naval Singh could not be examined because of the laxity on the part of prosecution, petitioner was left with no other option except to approach this Court by way of instant petition, which deserves to be allowed.
No other argument was raised.
13. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that since the impugned order suffers from patent illegality, it cannot be sustained. Accordingly, the impugned order dated 24.7.2014 (Annexure P1) passed by the learned JMIC, Hansi, closing the prosecution evidence, is hereby set aside.
14. Consequently, the learned trial court is directed to examine all the remaining unexamined witnesses including ASI Sudhinder Kumar and HC Naval Singh. Simultaneously, prosecuting agency, through the concerned officers of the department, is directed to ensure that no delay takes place at their instance and the unexamined prosecution witnesses are produced, before the learned trial court at the earliest. Since the criminal trial is pending for a considerable long time,
learned trial court shall make an endeavour to conclude it as early as possible, however, only after examining the left over prosecution witnesses."
12.
A perusal of Section 311 Cr.P.C. and the judgement in Om Parkash's case (supra) would show that the Court has ample powers to summon a material witness, or recall and re-examine any person already examined if his evidence appears to be essential for the just decision of the case. Further, the Trial Court is not powerless where it finds that there is laxity on the part of the prosecution to produce its witnesses. In fact, the Court ought to adopt coercive steps to secure the presence of unexamined prosecution witnesses, moreso, when they happened to be official witnesses. 13.
In the present case, the Trial Court has shown complete helplessness in securing the presence of ASI Kewal Singh to depose as a prosecution witness. In fact by closing the prosecution evidence and dismissing the application under Section 311 Cr.P.C. it is the complainant who has been penalised for the act and conduct of the State. The Trial Court should have taken coercive steps to secure the presence of the unexamined witness.
14.
In view of the above discussion, I find merit in the present petition. Therefore, the orders dated 05.12.2017 (Annexure P-1) and 10.10.2017 (Annexure P-2), both passed by the Judicial Magistrate Ist Class, Patti, are quashed. The application under Section 311 Cr.P.C. dated 20.11.2017 (Annexure P-4) is allowed. ASI Kewal Singh who is a material witness in this case shall be examined by the Trial Court on the next date of hearing before it or on any other date convenient to the Court on issuance of summons to him in accordance with law. It is also made clear that in case
ASI Kewal Singh plays truant with the Court and chooses not to appear as has been the case earlier, the Senior Superintendent of Police, Tarn Taran, shall take him into custody and produce him in the Court to depose as a prosecution witness. Thereafter, the Trial Court is directed to conclude the Trial within 08 weeks of the examination of the aforementioned witness i.e. ASI Kewal Singh.
15.
Disposed of.
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