Rajan Kumar vs State Of

Rajasekhar Mantha, J

The revisionist is aggrieved by order dated September 2, 2019 whereby and whereunder the court below in exercise of power under Section 311 of the Code of Criminal Procedure has allowed recall at the instance of the opposite party no. 7, PW-17, PW-23, PW-25 and PW-35.

The court below was of the view that the recall of the witnesses was warranted for arriving at the truth of the matter.

The learned counsel for the revisionist would assail the order by arguing that the application for recall was made after conclusion of oral arguments by both sides one day before the delivery of the judgment.

This is denied by the learned counsel for the accused no. 6 and 7 by saying that the matter may have been at the argument stage but arguments were not concluded by the accused persons.

The revisionist would further argue that the recall of the witnesses was not required for any genuine purpose but to prolong the trial and delay disposal of the proceedings. The revisionist is a de facto complainant.

The learned counsel for the opposite party no. 7 relied upon two decisions of the Hon'ble Supreme Court. The first of which si the case of Rajan Kumar Machananda vs. State of Karnataka reported in 1990 (Supp) Supreme Court Cases 132, particularly paragraph 2 thereof.

He submits that the High Court in exercise of inherent powers, cannot, in view of Section 397 (3) of the Cr. P.C., entertain a revisional application under Section 482 of Cr. P.C., in view of bar contained under Sub-Clause (3).

This Court has considered the said judgment and found that the same is distinguishable in the facts of the case, since, in the said decision, the matter had traveled to the lower revisional court and it is only thereafter that the High Court was approached to Section 482 of Cr. P.C. the bar under Section 397 (3) of Cr. P.C.

Mr. Bhattacharjee, learned counsel representing the 7th accused also relied upon a decision of the Hon'ble Supreme Court in the case of Sethuraman vs. Rajamanickam reported in (2009) 5 Supreme Court Cases 153, particularly paragraph 5 thereof whereby and whereunder it was held that in view of Sub-Clause (2) of Section 397 of Cr. P.C., an inter locutory order in a criminal proceeding, cannot be assailed either in appeal or in revision under Section 482 of the Cr. P.C.

This Court having examined the impugned order dated September 2, 2019 and finds that the reasons for recall of the order have been duly recorded in the context of Section 311 of Cr.P.C.

Indeed, as the court below has found, the object and purpose of Section 311 and allowing application thereunder for either calling for a new witness or summoning a witness for re-examination can always be ordered and may be imperative in a given situation, particularly when the accused are charged under Section 302 of the Indian Penal Code.

Serious consequences may entail to the justice delivery process if every and last opportunity is not given to an accused even seek recall of a witness for good reasons.

This Court has also noted the decision of the Hon'ble Supreme Court in the case of State (NCT of Delhi) vs. Shiv Kumar Yadav & Anr. reported in (2016) 2 Supreme Court Cases 402 replied upon by the learned counsel for the revisionist as also the State. It is mandated by the Hon'ble Supreme Court in such judgment that applications under Section 311 are not allowed at the drop of the hat and must be entertained for sound and good reasons. The charge in the said case was under Section 376 of the IPC.

This Court finds that reasons have been duly recorded by the court below and the impugned order therefore does not call for interference. However, since the trial is on for well-over two years and arguments have commenced, it is ordered that the trial Judge shall ensure the completion of the cross-examination of the recalled witnesses, mandatorily and positively within a period of 4 days from the date already fixed, i.e., Monday (23.09.2019)

The prosecution shall ensure that the witnesses directed to be recalled are produced without fail on the date fixed by the court below.

With the aforesaid directions, the revisional application is disposed of.

There will be no order as to costs.

It is expected that, since the arguments had already began and there has been substantial consideration by the learned trial Judge of the evidence, the oral arguments, the trial is concluded and the judgment be delivered preferably within a period of one month from date.

The parties shall be entitled to communicate the operative part of this order on their respective letterheads to the court below and the court below shall act upon the same.

The Registry shall also communicate a copy of this order to the Court below.

Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.