ZEESHAN ALI Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) By means of this petition moved under Section 482 Cr. P.C., the applicant/petitioner has made a prayer to set aside the impugned order dated 21.02.2013 passed by learned Ist Additional Sessions Judge, Dehradun in S.T. No. 108 of 2011 captioned as State vs. Zeeshan Ali under Sections 363, 366A, 376 and 506 IPC whereby the Ist Additional Sessions Judge, Dehradun has dismissed the applicant's application under Section 311 Cr. P.C. for recalling PW 1 Jyotibala (prosecutirx) for further cross-examination.

(2.) The contention of the learned counsel for the applicant is that the prosecution witness Jyotibala (PW 1) is required to be cross-examined further in the interest of justice. Learned counsel further submitted that an application was moved on behalf of the applicant/petitioner under Section 311 Cr.P.C. for recalling PW 1 for further cross-examination but the same was refused by the court below, in as much as, PW 1, who was having friendly relations with the accused-applicant, was under pressure of her family members when she made the statement before the Court below. The accused was not expected that PW 1 Jyotibala herself will tell a lie. Her statement brought the applicant in state of shock and surprise and therefore, she could not be properly cross-examined. PW 2 to PW 4 did not support the prosecution story.

(3.) It is settled in law if the conditions under Section 311 Cr.P.C. are satisfied, the Court can call a witness not only on its motion but on the motion of prosecution or the defence. Any person can be summoned as a witness or recalled or re-examined at any stage of proceedings. Power of Court to recall any witness, who has already been examined, can be invoked so long as the Court retain seisin of the criminal proceedings. The discretion vested in the court under Section 311 Cr.P.C. is however to be exercised judicially and not arbitrarily. The power to recall witness for further cross-examination is not to be exercised in a routine and casual way, but the same can be resorted to in appropriate cases and in exceptional circumstances in order to prevent miscarriage of justice.