ETESH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) BY way of this petition moved under Section 482 Cr.P.C., the applicant/petitioner has made a prayer to set aside the impugned order dated 11.08.2010 passed by the Sessions Judge, Haridwar and order dated 13.12.2011 passed by the Additional Sessions Judge/Ist FTC, Haridwar in S.T. No. 80 of 2008, captioned as State v. Etesh, under Section 304 IPC, whereby the learned Additional Sessions Judge/Ist FTC, Haridwar has dismissed the applicant's application, under Section 311 Cr.P.C. for recalling PW 1 to PW 3 for further cross -examination. The contention of the learned counsel for the applicant is that the prosecution witnesses 1 to 3 are required to be cross -examined further in the interest of justice. Learned counsel further submitted that an application was moved under Section 311 Cr.P.C. for recalling PW 1 to PW 3 for further cross -examination but the same was refused by the court below. It is submitted that some important questions which ought to have been asked in order to appreciate the facts in correct perspective, were not asked in the cross -examination of such witnesses, in as much as, the counsel who represented the accused, was, although a proficient in other disciplines of law but was a novice in criminal law. Mr. Mohd. Azim, learned counsel for the complainant/informant did not object to the prayer of learned counsel for the applicant. Learned counsel for the complainant submitted that he has no objection, if prosecution witnesses 1 to 3 are permitted to be further cross -examined before the trial court.

(2.) 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. In the instant case, the grounds exist for recalling PW 1 to PW 3, especially in view of the fact that the prosecution (complainant), who examined those witnesses, has no objection, if PW 1 to PW 3 are called for re -examination. 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. In such view of the matter, petition/application under Section 482 Cr.P.C. is allowed with consent of the learned counsel for the parties. Impugned order dated 11.08.2010 is set aside to pave way for further cross -examination of PW 1 to PW 3. Learned court below is requested to consider the admissibility of the questions which are proposed to be asked on behalf of the defence in further cross -examination, according to law. With the observations as above, the petition is finally disposed of.