1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Writ Petition (WP) No. 99 of 2011 (Kadirkhan S/o. Rashidkhan Pathan Vs. State of Maharashtra) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. Raj D. Wakode, Advocate for the petitioner. Mr. P. V. Bhoyar, A.P.P. for the respondents/State. respondents/State. C ORAM : PRASANNA B.VARALE, J. DATE : 29 th April , 2011. By the present application, the petitioner is challenging the order passed by the learned Judicial Magistrate First Class, Court No. 1, Chandur Bazar, Amravati, dated 15/09/2008, thereby rejecting the application filed by the petitioner/original accused no. 1 to recall the witnesses, and confirmed by the learned Additional Sessions Judge, Achalpur, by judgment and order dated 16/12/2010, in Criminal Revision No. 91/2008. The brief facts of the matter are as follows : The applicant is the original accused. The applicant, who was serving as a Assistant Teacher in Jijamata Vidyalaya, Chandur Bazar, Amravati, was charged for the offences punishable under Sections 451, 354, 511, 506 and 305 of I.P.C. The applicant/accused pleaded not guilty to the charges. 2 The trial proceeded and three witnesses viz. PW-1 Durga Vishnupant Hatwar, PW-2 Hemant Sahadeorao Hatwar and PW-3 Arjun Dhanraj Manapure are examined. As the learned counsel for the petitioner realized that he forgot to ask important questions and also realized that he had not confronted the witnesses with the documents, he submitted an application for recalling the prosecution witnesses i.e. PW-1 Durga Hatwar and PW-2 Hemant Hatwar. The learned Magistrate rejected the application. Being aggrieved by that order, Criminal Revision No. 91/2008 was presented and the same was dismissed by the learned Revisional Court by order dated 16/12/2010, by observing that the revision is not maintainable as well as the learned trial Court has committed no illegality. The learned advocate for the petitioner vehemently submitted that both the Courts below have erred in arriving the conclusion. The learned advocate further submitted that as the learned counsel representing the petitioner/accused no. 1 was inexperience and due to inadvertence important omissions remained to be brought to the notice. He further submitted that re-examination of PW-1 and PW-2 is necessary and by allowing re-examination of the witnesses, no prejudice would be caused to the prosecution. 3 The learned A.P.P. has supported the impugned orders passed by the Court below. The learned A.P.P. submitted that the petitioner is trying to delay the proceedings by filing the frivolous applications. The learned A.P.P. further submitted that the F.I.R. lodged against the petitioner in the year 2002 on the complaint of one Durga Hatwar. The investigation was concluded by filing charge-sheet on 31/12/2002. The petitioner is trying to prolong the trial by one way or the other. It is the settled position of law that an application for calling the witnesses can be filed at any stage of the trial or proceedings in view of the provision under Section 311 of the Code of Criminal Procedure. It will be useful to refer Section 311 of the Code of Criminal Procedure, which reads thus : “311. Power to summon material witness, or examine person present - Any Court may, at any stage of any inquiry, trial or other proceeding 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.” 4 It will be also useful to refer to the judgment of Rajastan High Court in case of Ashok Kumar Vs. State of Rajasthan and another,1995 CRI.L.J. 1231 , wherein it is observed that, a perusal of the aforesaid section reveals that it consists of parts. The first part is discretionary and enables a Court at any stage (a) to summon any one as a witness; or (b) to examine any person present in the Court; or (c) to recall and re- examine any witness. The second part which is mandatory, compels the Court to take any of the above steps if the new evidence appears to be essential to the just decision of the case. There is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided, the Court is bona fide of the opinion that for the just decision of the case, the steps shall be taken. The present case falls in the first part, which is discretionary. The discretion of course should be exercised judicially and reasonably. If the said power is exercised arbitrarily or unreasonably, this Court can pass necessary orders to prevent miscarriage of justice in exercise of inherent powers under S.482, Cr.P.C. The question for consideration of this Court is whether by the present petition, the petitioner has made out such a case for recalling the witnesses. Perusal of the record shows that the application was 5 moved by the petitioner and the ground raised in the application, which is placed on record as Annexure-B, are (1) that the accused no. 1 has cross examined the above witnesses but he forgot to ask some material omissions and contradictions which are remained to be confronted, to the witnesses and (2) that some important documents are remained to be confronted to the witnesses which are material and important to decide the fate of the case. The learned Magistrate while considering the application observed that both the witnesses have been cross-examined at length by the learned counsel for the accused no. 1. It is not the case that no opportunity was given to the accused for cross- examining the witnesses. The complainant has been examined at length by the counsel for accused no. 1. Under these circumstances, it is not a good ground to say that some of the questions were not asked and they are forgotten and, therefore, again an opportunity should be given to the accused for cross-examination under the provision of Section 311 of the Code of Criminal Procedure. Perusal of the application, the grounds raised by the petitioner as stated above are vague and ambiguous. It is stated in the application that he forgot to ask some material omissions and contradictions 6 which are remained to be confronted to the witnesses and also some important documents are remained to be confronted to the witnesses which are material and important to decide the fate of the case. One fails to understand that with such vague materials, how it can be said that the recalling of the witnesses as sought by the petitioner would help the Court for just decision of the case. The learned Revisional Court by observing that the order passed by the learned Magistrate rejecting the application under Section 311 of the Code of Criminal Procedure, being interlocutory oder, revision against the order was barred under the provision of Section 397 of the Code of Criminal Procedure. The learned Additional Sessions Judge, Achalpur, placed reliance on the judgment of Hon'ble Apex Court in case of Sethyuraman Vs. Rajamanickam, 2009 (2) Crimes 1 (S.C.). In my considered opinion, no fault can be found with the orders passed by both the Courts below. There is considerable merits in the submission of the learned A.P.P. that the F.I.R. against the accused is lodged by the complainant in the year 2002, the charge-sheet is also filed in the year 2002, the trial is in process and considerable time has been lapsed. The application for recalling the witnesses was rejected by 7 the learned Magistrate by oder dated 15/09/2008, where as the revision was filed against the order in the year 2008 and the same was pending for two years. There is considerable merit in the submission of the learned A.P.P. that the petitioner is trying to prolong the proceedings. The learned advocate for the petitioner Mr. Wakode placed reliance on the judgment of this Court in case of Prakashsinh Gangaram Marwadi and another Vs. State of Maharashtra, 2011(2) Mh.L.J. 902. There cannot be any dispute on the proposition of law that recalling of the witnesses can be allowed for just decision of the case. As observed above, in my opinion, the petitioner has failed to make out the case for recalling the witnesses in view of the provision under Section 311 of the Code of Criminal Procedure and no fault can be found with the impugned orders passed by the learned Magistrate and the learned Revisional Court. It will be also useful to refer the judgment of Madhya Pradesh High Court in case of State of M.P. Vs. Pattu alias Pratap Singh, 2001 CRI.L.J. 3217. It is observed in the judgment that in case in the cross- examination the counsel did not put questions which ought to have been put, cannot give accused persons the right to recall the witnesses for cross-examination. It 8 is also observed in the said judgment that the accused persons were given sufficient opportunity to cross- examined the witnesses. In my opinion the said judgment is squarely applicable to the present case as the facts in the present case are similar that sufficient opportunity was given to the accused for cross -examining the witnesses and the learned counsel for the accused forgot to ask some questions to the witnesses. It will also be useful to refer the judgment of Kerala High Court in case of Johnson Vs. State of Kerala, 1997 CRI.L.J. 1228. It is observed by the Kerala High Court that, no doubt, there is power in the Court under S.311, Cr.P.C. to "recall or re-examine any person already examined", but before this could be done, the Court must be satisfied that the evidence appears to it "to be essential to a just decision of the case". In other words, it is not that the Court can, for the asking, "recall and re- examine any person already examined". It is not to be done as a matter of course or in a perfunctory manner, whenever a request is made therefor. The evidence of the witness, who is sought to be re-examined must be essential "for a just decision of the case", and, whether it will or not, will depend upon the facts and circumstances of each case and the nature of the evidence that is sought to be brought in. No doubt, 9 the Court is given a discretion, that has to be exercised on sound judicial principles. In my considered opinion, the petition is devoid of merits. In the result, the petition is rejected. JUDGE *Sandesh