THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.R.C No.260/2008 and Crl.P.No.583/2008 Dt,1-7-2010 Crl.R.C.No.260/2008 The State of Andhra Pradesh, represented by its Pubic Prosecutor, High Court of A.P., Hyderabad ..Petitioner V. 1.Parmappa Naidu and others. ..Respondents Crl.P.NO. 583/2008 P.Paramappa Naidu ..Petitioner-A-1 V. The State of Andhra Pradesh, represented by its Pubic Prosecutor, High Court of A.P., Hyderabad ..Respondent., The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.R.C No.260/2008 and Crl.P.No.583/2008 COMMON ORDER Since this criminal revision case and criminal petition arise against one and the same common order, they are being disposed of by this common order. Criminal Revision Case No.260/2008 is filed by the State against the common order dt 1-2-2008 passed in Crl.M.P.No.371/2007 in SC No.103/2003 on the file of II Additional Sessions Judge, Kurnool at Adoni, whereunder Crl.M.P.No.371/2007 filed under Sec.311 Cr.P.C., by the State to recall P.W.2 was dismissed. Whereas Crl.P. No.583/2008 under Section 482 Cr.P.C., by A-1 in S.C.No.103/2003 on the file of II Additional Sessions Judge, Kurnool at Adoni is filed for quashing the common order dt.1-2-2008 passed in Crl.M.P.No.346/2007, whereunder Crl.M.P.No.346/2007 filed under Section 311 Cr.P.C., by the State to recall P.W.1 was allowed for the purpose of giving further evidence. In the criminal petition, it is stated that P.W.1 was summoned to give evidence on 29-10-2007 and he was examined on 30-10-2007 stating that on the date of incident, he was at Guntakal and he has not witnessed he incident He was declared hostile by the prosecution and he was sufficiently cross-examined by the Public Prosecutor. P.W.2 was also examined on the same day ie., 30-10-2007 and he was also declared hostile by the Public Prosecutor. After examination of P.W.6 on 6-11-2007, an application in Crl.M.P.No.346/2007 under Section 311 Cr.P.C., was filed to recall P.W.1 for further examination. Along with the application, the affidavit of P.W.1 sworn on 19-11-2007 was filed, wherein he stated that he gave false evidence on 30-10-2007 because of the threats exerted by the accused. A similar application on the same ground was filed to recall P.W.2. Learned Sessions Judge while allowing application filed to recall P.W.1 dismissed the application filed to recall P.W.2. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the petitioner-A-1 in Crl.P.No.583/2008 and respondents-accused in Crl.R.C.No.260/2008 submitted that even according to the affidavit of P.W.1, he gave false evidence earlier and he wanted to come out with truth if given an opportunity. On the report given by P.W.1 stating that the accused threatened him with dire consequences, Cr.No.284/2007 was registered in Kurnool II Town Police Station, therefore, the prosecution cannot rely upon the same allegations to recall P.W.1. Further P.W.1 was brought to the Court on 30-10-2007 in execution of bailable warrant when he failed to attend the court on 29-10-2007 and the concerned police were present at the time when P.W.1 gave evidence in court. Therefore, threatening the deceased by the accused does not arise. What applies for dismissal of petition to recall P.W.2, is equally applies to the petition ie., Crl.M.P.No.346/2007 filed to recall P.W.1. On the other hand, learned Public Prosecutor contends that when application in Crl.M.P.No.346/2007 was allowed permitting the prosecution for recalling P.W.1, dismissing the application filed for recalling P.W.2 is erroneous, and same is liable to be set-aside. In view of the above rival contentions, the point for consideration is whether the trial court committed any error in recalling P.W.1 by allowing Crl.M.P.No.346/2007 and dismissing Crl.M.P.No.371/2007 filed for recalling P.W.2? It is well settled that the cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. Though Section 311 is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. It is well settled that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. (See: :MOHANLAL SHAMJI SONI VS. UNION OF INDIA=1991 Crl.L.J. 1521) The Supreme Court in U. T. OF DADRA AND HAVELI VS. FATEHSINH MOHANSINH CHAUHAN (2006 (7) SCC 529) after referring to its earlier judgment in MOHANLAL SHAMJI SONI VS. UNION OF INDIA held the exercise of power under Section 311 Cr. P. C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the Court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in prosecution case" unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused resulting in miscarriage of justice. By allowing petition to recall P.W.1 will not cause any prejudice to the petitioner-A-1 for the reason the accused can always take the advantage to contradict the statements made earlier and can always argue that his evidence is untrustworthy because of the conflicting versions given every time. The petitioner can also cross-examine the witness and establish that his evidence is untrustworthy and it cannot base a conviction. In view of the same, no infirmity is discernible in the order passed by the trial court permitting the prosecution to examine P.W.1. Further cogent reasons have been assigned while refusing to permit the prosecution to examine P.W.2 again. Since no sufficient grounds are made out not to recall P.W.1, the discretion exercised by the trial court in permitting the prosecution to recall P.W.1 does not suffer from any manifest illegality. The Criminal Revision Case as the Criminal Petition are accordingly dismissed. ______________ A.GOPAL REDDY,J Dt.1-7-2010 kmr