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Judgment
Rule made returnable forthwith. The learned Special Public Prosecutor waives service for the respondent. Heard finally by consent of parties.
The challenge in this petition, at the instance of the petitioner/accused no. 2, is to the order dated 03.11.2017 (below Exhibit-160), thereby refusing
to recall PW-1 (complainant) for the purpose of cross-examination.
PW-1 (complainant) was cross examined on behalf of the petitioner and at the stage when PW-1 was to be cross examined, on 04.11.2016 on
behalf of the petitioner, time was sought on the ground of illness of the Counsel. Accordingly, time was granted. However, on 05.11.2016, again
an application for adjournment was filed, which was objected by the learned Public Prosecutor. The said request for adjournment was rejected.Â
The record shows that the petitioner filed an application under Section 311 of the Cr.P.C. for recalling PW1 along with a Medical Certificate of the
Counsel. The learned Special Judge, however, by the impugned order, has dismissed that application. The learned Special Judge had come to the
conclusion that the Medical Certificate is manipulated. This is for the reason that the certificate, which is produced by the petitioner, is dated
04/11/2016 while the application for recall came to be filed on 02/11/2016. For this reason alone, it cannot be said that the Medical Certificate is
manipulated. I have perused the Medical Certificate and I do not find that it can be said to be manipulated. In para 9, the learned Special Judge has
then observed that change of Counsel is not a ground for directing recall. However, the learned Counsel for the petitioner points out that the recall
was not sought on the ground of change of Counsel, but on the ground of illness of the Counsel.Â
Considering the overall circumstances and after hearing the parties, I find that an opportunity has to be granted to the petitioner to cross-examine
PW1. It is true that PW1 is from Delhi and will have to attend the case for the purpose of crossexamination. The learned Counsel for the
petitioner, therefore, submitted that the petitioner is willing to incur costs as may be determined by this Court. Â The learned Counsel for the petitioner
undertakes that PW1 shall be cross-examined positively on the next date or any other date as may be fixed by the learned Special Judge. In such
circumstances, the following order is passed :
(i) The petition is allowed.
(ii) The impugned order is hereby set aside, subject to costs of Rs.5,000/-, to be deposited before the learned Special Judge on or before the next date
of hearing.
(iii) On payment of costs, as aforesaid, PW1 shall be recalled for being cross-examined on behalf of the petitioner.
(iv) The petition is disposed of in the aforesaid terms.