R. Krishnamurthy vs The State by Inspector of Police

N. Arumugham, J.—Heard. The legality and propriety of the impugned order passed by the learned Sessions Judge in Crl.M.P. No. 7665

of 1996 in SC 107 of 1995 on the file of Vth Additional Sessions Court, Madras on 3-1-1996, following the petition filed under S. 311 of the

Code of Criminal Procedure by the prosecution, is challenged in this revision, on the ground that the prosecution is not entitled to ask for recalling

the witness examined already for the purpose of treating the witness said as hostile after the examination of other prosecution witnesses.

The Inspector of Police/respondent herein filed the final report against the accused/petitioner for the offence under S. 302, IPC alleging the

crime of the murder of one Venkatesan on 13-5-1994 night. The brother''s daughter of the deceased Venkatesan, by name, Dhanalakshmi was

examined as P.W. 1 in Chief as well as cross. After completing her examination, other witnesses were also admittedly examination, other witnesses

were also admittedly examined by the prosecution. For the reasons that she had stated something in the cross-examination which was contrary to

what was stated by her during the course of her chief examination which was contrary to what was stated by her during the course of her chief

examination, and which was noticed by the prosecution subsequently, a petition under S. 311 of the Code of Criminal procedure was fied with a

request to recall P.W. 1 for the purpose of treating her hostile. The petition was objected to by and on behalf of the accused/revision petitioner

herein. After hearing both the parties and going through the case-laws cited by and on behalf of the respective parties, learned trial judge has

allowed the said petition and permitted the prosecution to recall P.W. 1. Aggrieved at this, this revision has been filed.

I have heard the Bar for the respective parties, for and against the impugned order. To appreciate the points involved in this case, it has become

necessary for me to advert S. 311 of the code of Criminal Procedure which runs like this :-

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 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"".

The charge involved in the instant case seems to be one under S. 302, IPC against the revision petitioner. The person who is sought to be

recalled was examined as P.W. 1 already in full. The ground upon which the recall was prayed for is that the said witness has spoken to the fact

which is totally destructive to what she has told before the court during the course of chief examination and contrary to her statement given before

the learned Magistrate and recorded under S. 164 of the Code of Criminal Procedure. This inconsistent stand taken by P.W. 1, the only eye-

witness seems to be an edgy for the prosecution to file the impugned petition and get the order. Learned trial Judge after seeing the grounds as well

as the resistance made by and on behalf of the petitioner and having followed the legal ratio held by the higher courts, has concluded that the

prosecution has got a right to ask the Court to recall the witness for the purpose of examining further which is inclusive of treating the witness

hostile, and accordingly, allowed the petition.

The grievance exposed by and on behalf of the revision petitioner is that the right conferred upon the prosecution cannot at all be allowed to be

exercised at any point of time and more particularly, when the prosecution witnesses were examined, then asking for recalling a particular witness

for the purpose of treating the witness as hostile would cause prejudice to the accused petitioner. In this context, the question that remains to be

looked into is whether the prosecution is entitled to ask for recalling of any witness examined earlier for the purpose of treating the witness hostile

at any point of time or not ?

I have had occasions to consider the nugget of the above section of law in several cases and my preference on such occasions went to the

extent that there is no limitation provided in the above section of law to exercise the right to ask the court to recall any witness for the purpose of

further examination which is inclusive of chief examination as well as cross-examination and also for treating the witness hostile. However, the

recalling of any witness or examining such witness statutorily depends upon the fact that the court must get satisfied that such recalling and re-

examination of the witness must be essential to the just disposal and adjudication of the case on hand. If the right is allowed to be exercised

otherwise, it may result in redundant tendency causing prejudice to either of the parties to a given case. If the trial Court is not satisfied with the

requirement or the essentiality of the further examination of the witness by recalling, then, it need not give permission to recall and examine any

witness for and on behalf of the prosecution. The whole thing thus, seems to depend upon the requirement which is to be looked into by the trial

Judge with utmost care and caution, in order to arrive at a total adjudication and proper decision of the case, in the interest of justice. It is,

therefore, under the circumstances, very difficult to find out whether there is limitation for recalling of the prosecution witness examined already for

further examination or for treating the witness hostile in the Section of law itself in any specific words or otherwise. The guidance provided in the

above Section itself demonstrates that above said fact and therefore, the power conferred upon the trial Court in the above section of law is so

wider.

Having considered the above position with the facts of the instant case, I am constrained to say that the impugned order passed by the learned

trial Judge is correct in the sense that it has caused no prejudice to the petitioner/accused. In fact, it appears that the learned public prosecutor

incharge of the case before the trial Court ought to have treated this witness hostile with the permission of the Court immediately when she

deposed adverse to the prosecution case or the statement given by her on an earlier occasion. The failure to treat the only eye-witness viz., P.W. 1

as hostile immediately when she spoke something destructive to the prosecution case is rather unbecoming on the part of the public prosecutor and

perhaps, that was the reason for him to file the petition under S. 311 of the Code of Criminal Procedure at a later stage which was acceded by the

Court below. The laches or irregularity on the part of the prosecuting agency, in the extent that it would not create or cause any prejudice to the

accused, is not a mere fancy to say that the present revision should be allowed and the impugned order should be set aside. In fact, the present

revision is hit by sub-sec. (3) to S. 397 of the Code of Criminal Procedure, but, however, such a plea is not before me. It is stated that the trial is

pending, that too for a charge under S. 302, IPC. Under such circumstances I do not find any reason to sustain this revision. On the other hand, I

am constrained to hold that there is no valid point to be probed in this revision and accordingly, the revision lacks all legal grounds. Considering the

pendency of the trial, I am constrained to dispose the revision on hearing both the parties on merits and accordingly, for all the reasonings given

above, the present revision fails and stands dismissed. The order of the learned V Additional Sessions Judge, Madras in Crl.M.P. 7665 of 1996 in

SC 107 of 1995 dated 3-1-1995 is hereby confirmed. In the light of the above observations, the trial Judge is hereby directed to dispose of the

case in accordance with the law as expeditiously as possible.

Petition dismissed.