Chaina Ram and Another vs State of Rajasthan

Mohd. Yamin, J.—Here is an example when change of advocate required cross examination of some witnesses. Petitioners Chaina Ram Lakha Ram are facing trial for offence u/s 302 IPC before learned Additional Sessions Judge, Sojat. During trial Hema Ram PW-1, Rajaram PW-4 and Ghewar Ram PW-5 were examined. They were cross examined at length by the learned Counsel on behalf of accused persons. But somehow or the other the accused persons changed advocate. He was dissatisfied by the cross examination of above witnesses made by his predecessor adve cate. He moved an application under Sections 311 and 231(2) Cr.P.C. and prayed that the accused persons may be granted opportunity to further cross-examine these witnesses. Learned Additional Sessions Judge dismissed it. Hence this revision.

I have heard Shri Garg and Shri S.S. Sharma, Public Prosecutor.

Admittedly scope of Section 311 Cr.P.C. is such that lacunae cannot be filled in. So far as provision u/s 231(2) Cr.P.C. is concerned, it provides that the Judge may, in his discretion, recall any witness for further cross-examination. This discretion of the Judge should be judicious and it need not be reiterated.

Learned Counsel for the petitioners submitted that PW-1 Hema Ram could not be confronted with his previous statements u/s 161 Cr.P.C. and the FIR which was lodged by him. He further submitted that there was contradiction in statement given in court by PW-5 Ghewar Ram and his statement given u/s 161 Cr.P.C. before police officer. He could not be confronted with previous statement by the earlier counsel. He also submitted that Rajaram is a witness of recovery who has proved Ex. P/9 and Ex. P/13 but the memos do not mention his name. This aspect could not be cross examined. According to him, these are material questions and the witnesses should be ordered to be recalled and re-examined before the trial court.

On the other hand, learned Public Prosecutor has vehemently opposed the petition and submitted that definitely if the application is allowed, it would fulfil the lacuna left by the accused petitioners. He submitted that u/s 231(2) Cr.P.C. the trial court exercised its discretion by not allowing cross examination as he was of the view that it was not necessary. He submitted that it is left on the discretion of the Judge himself that when he feels that the witness should be cross-examined, he may recall. In this case, learned trial Judge has, in my view, rightly refused to resummon the witnesses. It is not such a special case wherein the circumstances - - - - - - - - - - - - - - - - There may be an example when such cross examination may be necessary i.e. when fresh materials for further effective cross-examination of a witness which was not formally available has come to the knowledge of defence. Mere change of advocate is not a ground to give opportunity to recall witnesses and to give opportunity for further cross-examination.

Consequently, I do not find any infirmity in the discretionary order of learned Additional Sessions Judge as I find it based on valid reasons. I dismiss this petition. A copy of this order be sent to trial court.