PRADEEP Vs. STATE

JUDGEMENT

(1.) THE petitioner has impugned the order dated 18.01.2012 vide which the application filed by the petitioner under Section 311 Cr.P.C. seeking recall of PW -4 Harbir was dismissed.

(2.) MR .Pawan Sharma, learned counsel for the petitioner submits that PW -4 Harbir who is injured and a star witness was examined on 04.02.2008 and thereafter on 12.09.2008. He filed an application dated 12.01.2011 seeking recall of PW -4 for his cross -examination which was dismissed by the learned Addl. Sessions Judge vide order dated 23.02.2011. The said order was challenged by the petitioner before this Court by filing a revision petition, but the said petition was dismissed as withdrawn on 19.09.2011 with liberty to the petitioner to file a fresh one. Thereafter, the petitioner filed another application seeking recall of the said PW -4 which was dismissed by the learned Addl. Sessions Judge vide order dated 18.01.2012, observing that the Court cannot permit use of the provision under Section 311 Cr.P.C. to fill up the lacuna and that similar prayer has already been declined by the Court which was unsuccessfully challenged before the High Court.

(3.) IN Mohan Lal Shamji Soni vs. Union of India and Anr. Crl.Appeals No.4 & 5 of 1979 relied upon by counsel for the petitioner in support of his contention, after examination of the prosecution witnesses, recording of statement of the appellants as well as examination of defence witnesses, at the stage of arguments, before commencing arguments, the prosecution filed two applications for recalling Seizing Officer for further examination and to issue summons to two more witnesses for examining them either as prosecution witness or as a court witness as contemplated under the said provision which was rejected by the learned Judicial Magistrate and the order rejecting the application was confirmed by the Sessions Judge. However, the High Court while criticising the conduct of the prosecution for its deplorable and lethargic attitude in not carefully and promptly conducting the proceedings allowed all the Criminal Revisions. The said order was confirmed by the Apex Court.