Sukhlal Mandavi vs State Of Chhattisgarh

This Petition has been filed under Section 482 Cr.P.C against the order dated 22.02.2023 passed by the Sessions Judge, Bastar, Jagdalpur in Sessions Case No.37/2017 (it has been mentioned as 34/2017 in the impugned order), whereby the application filed by the Petitioner under Section 311 Cr.P.C for recalling the prosecutrix and two other witnesses for re-cross-examination, has been dismissed.

Brief facts of the case are that charge sheet has been filed against the Petitioner and other co-accused persons under Sections 376(d), 302, 392, 241 and 506 IPC and all the witnesses have been examined on 15.02.2023. The Petitioner has filed an application under Section 311 Cr.P.C as the some important questions are left behind for examination at the end of Complainant/prosecutrix (PW-3) with regard to the identification of the Petitioner, therefore, the Petitioner has filed an application for re-cross-examination of the said 3 witnesses, which has been dismissed by the order impugned.

Shri Ali, learned Counsel for the Petitioner submits that the impugned order is bad in law and placed reliance on the judgment rendered in the matter of Rajaram Prasad Yadav vs. State of Bihar and Another reported in (2013) 14 SCC 461, wherein it was held that the Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case and further submits that therefore, for just decision of the case, the said application ought to have been allowed.

On the other hand, Shri Bajpai, learned State Counsel supports the order impugned and submits that only because some questions were left behind for cross-examination is not a proper ground for recalling of the witnesses, who have already been cross-examined at length and in the application filed by the Petitioner also, no foundation has been laid regarding any subsequent circumstances that have arisen for re-cross-examination of the said witnesses, therefore, the same is not necessary and prays to dismiss the Petition accordingly.

Heard learned Counsel for the parties and perused the documents annexed herewith with utmost circumspection.

In the matter of Zahira Habibullah Sheikh (5) and Another v. State of Gujarat and Others reported in (2006) 3 SCC 374, the concept underlying Section 311 Cr.P.C has been considered at para 27, which reads as under:-

“27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.”

In the matter of State (NCT of Delhi) vs. Shiv Kumar Yadav, reported in (2016) 2 SCC 402, it has been held that “….certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined.”

Having considered the aforesaid principles and reverting back to the facts of the present case wherein, the Petitioner has not put forth any substantial ground/material for re-cross-examination of the said witnesses and has failed to demonstrate the bona fides of the application, further considering the uncalled for hardship that would be caused to the witnesses and also the uncalled for delay in the trial, this Court does not find any valid ground to allow the application filed by the Petitioner for re-cross-examination of the aforesaid 3 witnesses, as they have already been examined at length and finds that the Court below has rightly dealt with the same and passed the impugned order, which is just and proper and does not call for any interference invoking the jurisdiction under Section 482 Cr.P.C.

Accordingly, the Petition is bereft of any merits and is hereby dismissed in limine.