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Gagandeep Singh Vs. The State Govt. of NCT of Delhi - (High Court of Delhi) (02 Jul 2018)

Trial Court has power to summon any person as a witness, if his evidence appears to it to be essential to just decision of case



Petitioner/Accused impugns order, whereby, on an application under Section 311 of the Code of Criminal Procedure, 1973 (Cr.P.C.) filed by the Petitioner, the Trial Court has declined to summon Saurabh Goyal, son of Shri Bijender Goyal, as a Court witness, though has permitted the Petitioner to summon the said witness as a defence witness. Petitioner is an accused in FIR initially registered under Section 307/34 of Indian Penal Code, 1860 (IPC) read with Section 27 of Arms Act. Subsequently, Section 302 of IPC has been added as the victim therein passed away allegedly because of the injuries sustained.

It is settled that, the Trial Court has the power to summon any person as a witness, if his evidence appears to it to be essential to the just decision of the case. This power to summon, recall or re-examine any witness can be exercised at any stage of the trial proceedings. What is necessary for the Trial Court to examine is; as to whether the testimony of the witness is essential to the just decision of the case. If the Trial Court comes to a conclusion that the testimony of the witness is essential to the just decision of the case, it is obligatory, under Section 311 of CrPC, on the court to summon such a witness and examine him.

In the present case, the allegation of the Petitioner is that, there is evidence to show that, the Petitioner has been falsely implicated and that some of the witnesses have been falsely planted by the family of the deceased to falsely implicate the Petitioner. Petitioner relies upon the recorded conversation between Saurabh Goyal, the brother of the deceased and the mother of the petitioner, wherein he is alleged to have threatened the mother of the Petitioner and asked her to make the Petitioner depose against the co-accused-else he would be falsely implicated. It is further alleged that, if the Petitioner were to go against the co-accused, the planted witnesses would change their statement and exonerate the Petitioner.

Without commenting on the admissibility, genuineness, veracity or merits of the recorded conversation, it cannot be held that if such a conversation had taken place between the brother of the deceased and the mother of the petitioner, it would not have a bearing on the case, on the other hand if such a conversation did take place, the same would certainly have a bearing on the just decision of the case. The trial Court, in the impugned order, has not held that, the testimony of Saurabh Goyal is not essential to the just decision of the case but has rejected the application holding that, the Petitioner can summon him as a defence witness. Clearly, in the face of the allegations against Saurabh Goyal, he cannot be summoned by the Petitioner as a defence witness.

The prosecution, having cited him as a prosecution witness and thereafter having dropped him, cannot be forced to produce him as a prosecution witness. Only course left is to exercise powers under Section 311 of CrPC and summon said Saurabh Goyal as a Court witness. No prejudice would be caused to the prosecution, if sufficient opportunity is granted to the prosecution to rebut any evidence that may come on record.

The petition is allowed, impugned order is set aside. Trial Court is directed to summon Saurabh Goyal as a Court witness and thereafter afford an opportunity to the Petitioner to confront him with the alleged recorded conversation, in accordance with law. The prosecution shall also be afforded opportunity to rebut the same. The petition is disposed of.


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