Trial court must actively ensure examination of witnesses: High Court

The Punjab and Haryana High Court has asserted that trial courts must ensure all witnesses listed in the challan or supplementary challan are summoned and examined unless explicitly given up by the prosecution. Justice Manisha Batra of the high court also made it clear that a presiding judge should not remain a “mere spectator” but must actively ensure a fair trial by participating in the process.

The ruling came on a petition for quashing of an order passed by Jalandhar Additional Sessions Judge in a case registered under the provisions of the Narcotic Drugs and Psychotropic Substances Act and Arms Act. The petitioner-accused had challenged the trial court’s decision to allow the prosecution to examine witnesses from a supplementary list after the closure of prosecution evidence. These witnesses had been included in a supplementary challan filed during the trial.

Justice Batra asserted: “If the prosecuting agency would have been more vigilant, the witnesses named in the supplementary list could have been examined earlier but the benefit of lackadaisical attitude on the part of the prosecuting agency cannot be given to the accused in view of the reason that neither the examination of these witnesses would amount to filling up any lacuna in the case of the prosecution, nor it could be stated that the witnesses were not intentionally examined earlier.”

Justice Batra added it was the trial court’s duty also to be vigilant of the fact that all the witnesses mentioned in the challan/supplementary challan report were summoned and examined unless given up by the prosecuting agency.

Justice Batra upheld the trial court’s decision while asserting that the examination of the witnesses was crucial for a just resolution of the case. “The presiding judge could not be presumed to be a mere spectator and was expected to become a participant in the trial,” the court asserted, while supporting the lower court’s view that the witnesses should be examined despite the prosecuting agency’s earlier oversight.

Justice Batra added an application under Section 311 of CrPC could undoubtedly not be allowed only to fill up lacuna in the prosecution or the defence case, to the disadvantage of the accused, to cause serious prejudice to his defence and even to give an unfair advantage to the opposite party. “But the power can certainly be and must be exercised when the evidence which is likely to be tendered by a witness is germane to the issue involved, while keeping in mind that opportunity of rebuttal, however, must be given to the other party”.