IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETEENTH DAY OF AUGUST TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Petition No.6407 of 2009 Between: Ponduru Appalasuri and others .. Petitioners AND The State of A.P. rep. by its Public Prosecutor, High Court of A.P. at Hyderabad .. Respondent Petition under Section 482 of Cr.P.C. praying that in the circumstances stated in the grounds filed therewith, the High Court will be pleased to quash the proceedings in Criminal Revision Petition No.67 of 2009 on the file of the I Additional Sessions Judge, Srikakulam. The petition coming on for hearing, upon perusing the petition and the grounds filed in support thereof and upon hearing the arguments of Sri G.V.L. Murthy, Advocate for the petitioners and of the Public Prosecutor for the respondent, the Court made the following: ORDER: In C.C. No.381 of 2007 on the file of the Special Judicial Magistrate of First Class, Prohibition and Excise, Srikakulam, the prosecution filed a petition under Section 311 of the Code of Criminal Procedure to recall the injured P.W.1 alleging that he did not depose some facts by mistake, which are material and hence, those material facts be permitted to be brought on record by re-examining P.W.1. The learned Magistrate referred to the opposition by the learned counsel for the accused, as what facts are to be deposed, was not specified and opining that the purpose of recalling P.W.1 should be stated in the petition. The learned Magistrate felt that the witness cannot be recalled to fill up lacunae. Following the decision in Union Territory of Dadra Haveli v. Fatehsing Mohansingh Chander[1], the learned Magistrate dismissed the petition. In the revision, the learned I Additional Sessions Judge, Srikakulam ordered on 03-07-2009 in Criminal Revision Petition No.67 of 2009 that P.W.1 be recalled for further chief-examination, as the same will not cause any prejudice to any party. The learned Additional Sessions Judge considered that recalling of a witness is only to find out the truth and the defence counsel will have an opportunity to cross-examine on those aspects and hence, felt that in the interests of justice, the petition is to be allowed. The accused challenged the revisional order in this petition contending that the exercise of power under Section 311 of the Code of Criminal Procedure should be resorted to only with the object of finding out the truth and to arrive at a just and proper decision, but not to fill up lacunae. The petitioners contended that in the absence of any proper reason, the petition for recalling P.W.1 should not have been allowed. Heard the learned advocate for the petitioners and Sri A. Ramesh, learned counsel representing the learned Public Prosecutor. It is seen from the petition for recalling of P.W.1 that nothing was specified in the petition as to what facts were omitted to be stated earlier, which are sought to be stated in the re- examination. Even if, all the minute details about the allegedly omitted material facts could not have been specified in the petition, there should have been at least some broad indication about the purpose for which the re-examination is being sought. Such an indication is necessary to know whether the request is a ruse to fill up lacunae in the prosecution version or is really intended to help arrive at a just and proper decision on placing the truth before the Court. As neither the learned Magistrate nor the learned Sessions Judge had an opportunity to examine the issue from this angle, in the absence of any indication by the prosecution, it will be in the interests of justice to remit the matter back to the trial Court to give one more opportunity to the prosecution to justify its request and to the trial Court to then determine such request in accordance with law. The order of the learned Sessions Judge in revision cannot be sustained, as there was no basis for his conclusion that the recall of P.W.1 will be in the interests of justice, when the prosecution never specified the reason or purpose for which such recall is requested. At the same time, the prosecution need not be denied an opportunity to recall also, if it is otherwise justified in making a request and therefore, the criminal petition has to be ordered accordingly. In the result, the order in Criminal M.P. No.1924 of 2008 in C.C. No.381 of 2007 on the file of the Special Judicial Magistrate of First Class, Prohibition and Excise, Srikakulam, dated 29-09- 2008 and the order in Criminal Revision Petition No.67 of 2009, dated 03-07-2009 on the file of the I Additional Sessions Judge, Srikakulam are set aside. The said Criminal M.P. No.1924 of 2008 in C.C. No.381 of 2007 is remanded to the trial Court for fresh determination in accordance with law after giving opportunity to the prosecution to place before the Court the purpose for which P.W.1 is sought to be recalled. The criminal petition is ordered accordingly. _____________________ G. BHAVANI PRASAD, J Date: 19-08-2009 Svv [1] 2007 (1) ALJ (Crl.) 174 (SC)