1 CRR-1935-2022 (O&M) IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRR-1935-2022 (O&M) Reserved on : 20.08.2025 Pronounced on : 29.08.2025 Sultan and others .....Petitioner (s) Vs. State of Haryana and another ......Respondent(s) CORAM: HON'BLE MRS. JUSTICE RAMESH KUMARI Present: Mr.Ramnish Puri, Advocate for the petitioners. Mr. Satbir Singh Goripuria, DAG, Haryana. Mr. Abhimanyu Batra, Advocate for the complainant. ---- RAMESH KUMARI J. Challenge in the instant petition is impugned order dated 05.09.2022, vide which learned Additional Sessions Judge, Jind allowed the application under Section 311 Code of Criminal Procedure, 1973 (for short “the Code”), filed by the complainant for her re-examination. 2. As per allegations in the FIR No. 287 dated 12.11.2018, under Section 307/34/323/341 IPC at Police Station Narwana Jind, registered on the basis of statement of complainant that on 11.11.2018, at about 7:00 p.m., accused-Sultan, husband of complainant along with co-accused Parvesh and SONIA ARORA 2025.08.29 16:13 I agree to specified portions of this document 2 CRR-1935-2022 (O&M) Ishwar, caused injuries to her and thereafter, with the intention to kill her, threw her in the canal. 3. After registration of FIR, investigation was conducted, report under Section 173 of the Code was presented in the Court of learned Illaqua Magistrate and thereafter, case was committed to Court of Sessions. On 31.01.2019, charges under Sections 307,323 read with 34 IPC were framed against all accused. The complainant was examined on 05.07.2019. She did not support the prosecution case and was declared hostile on the request of learned Additional Public Prosecutor. 4. Thereafter, complainant moved an application for her re- examination under Section 311 of the Code on the ground that she was examined as PW-4 on 05.07.2019. At that time, she was under false promise and assurance of accused-Sultan, who is her husband. After her examination on 08.08.2021, she was given beatings by accused-Sultan. She was medico legally examined at Civil Hospital Hisar on the same day. Accused-Sultan also threatened to kill her. She wants to re-examine herself to bring on record real and actual facts. 5. The application under Section 311 of the Code was contested by the accused by way of filing reply alleging that the complainant is not legally wedded wife of accused-Sultan. The complainant has committed fraud with the accused. She was already married with one Om Parkash @ Pappu and has three children from her marriage with said Om Parkash @ Pappu. Her statement was recorded in the Court on 05.07.2019 voluntarily, without any pressure and assurance. The alleged beatings to the complainant are denied by accused. She SONIA ARORA 2025.08.29 16:13 I agree to specified portions of this document 3 CRR-1935-2022 (O&M) suffered alleged injuries due to fall from scooty and she informed accused- Sultan regarding this on 08.08.2021 through whatsapp call. Accused reached hospital and got her treated. She was discharged from the hospital. The complainant did not lodge any complaint to police for the said incident. Re- examination of complainant is not necessary and prayer was made for dismissal of application. 6. The learned trial Court by following the law laid down by Hon’ble the Supreme Court in Natasha Singh Vs. CBI (State) C.C.J. 2013 (3) 650 (SC); V.N. Patil Vs. K. Niranjan Kumar and others, Criminal Appeal No(s).267 of 2021 (Arising out of SLP (Crl.) No(s) 8965 of 2018 decided on March 4th 2021; Mannan Shaikh and others Vs. State of West Bengal and Another 2014(13) SCC 959; Ratanlal Vs. Prahlad Jat and others 2017(9) SCC 340 and Swapan Kumar Chatterjee Vs. Central Bureau of Investigation, 2019 (14) SCC 328, allowed application permitting complainant to be re- examined in the Court vide impugned order dated 05.09.2022. 7. During the course of arguments, main contention of learned counsel for the petitioners is that the petitioners are falsely implicated in this case under Sections 307/323/34 IPC, registered vide FIR No.287 dated 12.11.2018 at Police Station Narwana Sadar, District Jind. The petitioners were charged on 31.01.2019. The complainant herself stepped into the witness box as PW-4 on 05.07.2019 and did not support the prosecution case and was declared hostile. Her statement dated 05.07.2019 was recorded without any pressure or assurance and it was her voluntarily statement. However, after 2½ years, she moved an application under Section 311 of the Code seeking SONIA ARORA 2025.08.29 16:13 I agree to specified portions of this document 4 CRR-1935-2022 (O&M) permission to re-examine herself on the ground that her earlier testimony was under false promise and assurance of petitioner No.1. she was never given beatings. She concocted a false story regarding giving beatings on 08.08.2021. On the other hand, she suffered injuries due to fall from the scooty and for that she was got treated by accused-Sultan. She through whatsapp informed accused regarding fall from scooty and suffering of injuries. The allegations in her application under Section 311 of the Code that she was given beatings on 08.08.2021, are totally frivolous and concocted whereas she made whatsapp call to petitioner No.1 and stated that she fell from her scooty and received injuries due to same. Had she was given beatings, she would have reported the matter to the police. The application dated 15.12.2021 was moved by the complainant after more than four months from the date of alleged beatings. Complainant also made a call to petitioner No.1 on 29.09.2021 from her mobile No.9306244063 in which she threatened that she had an MLR of the alleged incident of 08.08.2021 and she demanded money from petitioner No.1, failing which she would file application that her statement recorded on 05.07.2019 is not result of her free will but under pressure. 8. Learned counsel for the petitioners also contended that impugned order is liable to set aside on another ground regarding maintainability of application under Section 311 of the Code. The complainant is not at liberty to move application under Section 311 of the Code. Application could have been filed only by the Public Prosecutor or it would have been forwarded by the Public Prosecutor. The application under Section 311 of the Code, which was allowed vide impugned order, was neither forwarded by Public Prosecutor nor SONIA ARORA 2025.08.29 16:13 I agree to specified portions of this document 5 CRR-1935-2022 (O&M) filed by him. Allowing of the said application is abuse of process of law, which shall cause great prejudice to the accused. 9. It is further contended that complainant is a member of gang, who extracts money and property from innocent persons by leveling false and frivolous allegations of rape and molestation and later on compromise in the matter, after taking money from the said person. FIR No.273 dated 22.07.2019 was registered under Sections 120-B/166/219/342/389/406/420/506 IPC at Police Station Hisar Civil, District Hisar against the complainant and a cross case was got registered by the complainant against the accused of the said FIR. These facts were ignored by the learned trial Court. It was the complainant who was threatening the petitioners and they also moved an application to SHO, Police Station Garhi. The learned trial Court wrongfully invoked Section 311 of the Code. Learned counsel for the petitioners vehemently prayed for setting aside the impugned order dated 05.09.2022- 10. Per contra, learned counsel for respondent No.2 contended that on 05.08.2019, statement of respondent No.2 was recorded under false promise and assurance of petitioner No.1. It was not her voluntarily statement. Petitioners/accused persons gave her beatings on 08.08.2021 and she was medico legally examined. Sultan-petitioner No.1 also threatening respondent No.2 to kill her and she moved an application to get herself examined which was rightly allowed by the learned trial Court. The re-examination of respondent No.2 was necessary for a just decision of the case. She can move an application for re-examination as there is no bar, even the Court on its own SONIA ARORA 2025.08.29 16:13 I agree to specified portions of this document 6 CRR-1935-2022 (O&M) could have called her for recording statement under Section 311 of the Code. and he vehemently prayed for dismissal of the present revision petition. 11. The impugned order is passed by the learned trial Court while exercising powers under Section 311 of the Code, which reads as under: “311. Power to summon material witness, or examine person present-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 it to be essential to the just decision of the case." This section bestows the Court with wide powers to enable it at any stage of any inquiry, trial or other proceedings under the Code, to do one of three things: (a) to summon any person as a witness, (b) to examine any person in attendance, though not summoned as a witness; (c) to recall and re-examine any person already examined. 12. Meaning thereby, if in the opinion of the Court, the evidence of any person appears to be essential to a just decision of the case, it is obligatory on the Court to summon and examine or recall and re-examine any person or witness. This provision enables the Court to have best available evidence to do justice and to find out the truth to render a just decision. The Court has wide power under this section. The object is to do justice and to convict the guilty, protect the innocent. The judgment rendered by Hon’ble the Apex Court in SONIA ARORA 2025.08.29 16:13 I agree to specified portions of this document 7 CRR-1935-2022 (O&M) Zahira Habibulla H. Seikh and another v. State of Gujarat and others, 2004(2) RCR (Criminal) 836 is very important on this point:- "Object of the Section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth." xxxx xxxx xxxx 13. In para 41 of judgment rendered in Zahira Habibulla H Sheikh’s case (supra), it has been held:- "Witnesses" as Benthem said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their SONIA ARORA 2025.08.29 16:13 I agree to specified portions of this document 8 CRR-1935-2022 (O&M) prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the 'TADA Act') have taken note of the reluctance shown by witnesses to depose against dangerous criminals- terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies. (emphasis supplied). It was further held that, "It is not that in every case where the witness who had given evidence before Court wants to change his mind and is prepared to speak differently, that the Court concerned SONIA ARORA 2025.08.29 16:13 I agree to specified portions of this document 9 CRR-1935-2022 (O&M) should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power is to be exercised in a routine manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the Court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The Court can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in.” In Mannan Sk. and others v. State of West Bengal and another 2014 (13) SCC 59, in which the witness was recalled and re- examined after 22 years of incident, holding that justice must not be allowed to suffer because of the oversight of the prosecution. Even in the judgment rendered by the High Court of Gujarat in Sheikh Madinabibi Mustafabhai v. state of Gujarat Criminal Revision Application No 94, 142 of 2004 decided on 12.10.2004, where the High Court in very similar circumstances allowed the application filed by the complainant being conscious of the fact that an application under Section 311 of the Code had not been filed by the Public Prosecutor. The High Court on the question of maintainability of an application filed by a private person and SONIA ARORA 2025.08.29 16:13 I agree to specified portions of this document 10 CRR-1935-2022 (O&M) taking note of the provisions under Criminal Procedure Code that it is only a Public Prosecutor who can conduct a trial, held that ;- "11. It is true that in a case instituted on a police report, a victim and/or original complainant have no substantive right to address the Court or to participate in the proceedings as prosecutor, but it has been held by the Apex Court in the case of Thakur Ram v. State of Bihar, reported in AIR 1966 Supreme Court 911, that a private party can prefer an application seeking appropriate relief and such application can sustain if the private party is able to satisfy the Court that it is necessary to prevent substance and miscarriage of justice." 13. The aforesaid judgments clearly reflect that there is no limitation on discretion of the Court to recall or re-examine witness even, if the witness deposed one way before the Court, then wants to depose and is prepared to give evidence, which is clearly different from what has been deposed earlier. The complainant has specifically alleged that her earlier statement was recorded under false promise and assurance from accused-Sultan, who is none other but her husband. Accused-Sultan had not disputed his marriage with the complainant. He only alleges that the marriage was performed by fraud. He has not filed any petition seeking declaration for nullity of marriage with the complainant. If the complainant has criminal litigation with the third party, that is to be determined by the Court of law on the basis of evidence led by the parties to the said criminal litigation and that litigation cannot be used by the petitioners to indulge in character assassination of the complainant in the instant case. Learned trial Court committed no illegality or irregularity in SONIA ARORA 2025.08.29 16:13 I agree to specified portions of this document 11 CRR-1935-2022 (O&M) allowing the complainant to be recalled for the purpose of recording her statement because it is in consonance with the cardinal principal that truth must prevail. To ensure fair trial, the Court can consider the request and allow such witness to be recalled for re-examination. The second part of Section 311 of the Code clearly states that the Court shall summon and examine or recall or re- examine any person if his evidence appears it to be essential for a just decision of the case. The Court has to be satisfied that such application is not frivolous or vexatious application only to delay the trial or to fill up any lacuna in the trial. 14. So far as the maintainability of application under Section 311 of the Code is concerned, under Section 225 of the Cr.P.C (now Section 248 of Bharatiya Nagarik Suraksha Sanhita, 2023), it is the Public Prosecutor who is to conduct the trial. However, in given facts and circumstances of the instant case, Public Prosecutor himself continue to cross-examine the complainant when she was turned hostile and did not support the statement given under Section 164 of the Code. He also did not raise any objection to application under Section 311 of the Code as filed by the complainant raising question of maintainability, as such, it can be safely assumed that said application had the concurrence of Public Prosecutor. Even in the Court today, learned State Counsel did not assail the impugned order dated 05.09.2022. 15. Once the Court is of the opinion that to ensure fair trial, an application is to be allowed in order to unfold the truth, then the Court is not bound down by the technicalities when the witness-complainant is re-examined, the accused-petitioners are to be afforded an opportunity for her SONIA ARORA 2025.08.29 16:13 I agree to specified portions of this document 12 CRR-1935-2022 (O&M) cross-examination and no injustice or prejudice is likely to be caused to the petitioners/accused. 16. In view of the above, this Court finds no infirmity or illegality in the impugned order dated 05.09.2022 passed by learned Additional District Judge, Jind. Consequently, the present revision petition is dismissed being devoid of merits. 17. Pending application(s), if any, also stand disposed of. (RAMESH KUMARI) JUDGE 29.08.2025 sonia arora Whether speaking/reasoned: Yes Whether reportable: Yes SONIA ARORA 2025.08.29 16:13 I agree to specified portions of this document