MENASHI RAJABHAI KATHAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By the present petition filed under Art. 226 of the Constitution of India, the petitioner has challenged the order dated 20.12.2012 passed by the learned Additional Sessions Judge, Una. It appears that during the trial of the Sessions Case No. 67 of 2001 (New Sessions Case No. 35 of 2012) for the offences punishable under section 498A, 306 and 304B of the Indian Penal Code, the petitioner - accused made an application at Exh. 196 dated 20.10.2008 seeking recall of the witness No.1 and 3 examined by the prosecution for the purpose of their further cross examination on the ground that during their cross examination, some important questions were left to be put to them by inadvertence. Learned Judge rejected such application on the ground that the chief-examination and the cross-examination of these two witnesses were over on 1.3.2007 and 15.3.2007 respectively and it was not stated in the application that for what reason, the defence party - petitioner wanted further cross examination of the said two witnesses or it was not stated in the application that which questions were required to be put in the cross-examination. Learned Judge has observed that the powers of the Court for such purpose are not unconditional, unbridled or unrestricted and in rarest of the rare case, a witness could be recalled for cross-examination. It appears that such order was challenged before this Court by filing Special Criminal Application No.2657 of 2012. It further appears that by the time the said petition was moved, the petitioner had also moved application Exh. 269 on 18.8.2011 specifying 10 issues on which the petitioner wanted cross examination of the witnesses by recalling them. As could be seen recorded in the order dated 27.11.2012 in the above referred petition, the petitioner sought permission to withdraw the petition with a view to making appropriate application in connection with the application Exh.269 and the said petition was, thus, disposed of accordingly. It appears that the petitioner moved one more application Exh.306 specifying the very 10 points on which the petitioner wanted cross-examination and requested to recall the said two witnesses. The application Exh. 269 as also the application Exh. 306 were rejected by the learned Judge by the impugned order on the ground that the application Exh. 196 for recall of witnesses was rejected by detailed order and, therefore, subsequent applications Exh.269 and 306 shall not survive.

(2.) Learned Advocate Mr. Dagli appearing for the petitioner submitted that the right of cross examination is valuable right available to the accused and such right, if not allowed to be exercised by the accused, the accused suffers great prejudice and injustice as it would take away very right of the accused to defend himself in the criminal case. Mr. Dagli submitted that when the petitioner provided genuine reasons in the original application Exh. 196 and then filed application Exh. 269 specifying 10 questions which the petitioner wanted to put to the witnesses for the prosecution in the cross examination, the learned Judge ought not to have rejected the request for recalling of the witnesses for further cross examination. Mr. Dagli submitted that no prejudice would have been caused to the prosecution if the application Exh. 269 for cross examination of two witnesses on the questions stated in the application Exh. 269 and 306 was allowed. Mr. Dagli submitted that the power under section 311 of the Code of Criminal Procedure, 1973, (the Code") to recall the witness for cross-examination are always exercised to see that the accused gets full opportunity to defend himself. In support of his submission, learned Advocate Mr. Dagli has relied on the decision in the case of Hoffman Andreas Vs. Inspector of Customs, Amritsar reported in (2000) 10 SCC page 430 as well as the decision of Rajasthan High Court in the case of Ram Swaroop Vishnoi Vs. State of Rajasthan, reported in 2006 Cri. L.J. 1196.

(3.) Learned A.P.P. Ms. Thakkar for the respondent - State submitted that the recall of the witness for further cross examination is not available as a matter of right to any party. Ms. Thakkar submitted that the powers to recall the witness under section 311 of the Code for further cross examination are to be exercised by the Court if the Court, in the facts and circumstances of the case, finds that exercise of such powers is required for just decision but such powers could not be exercised simply because on behalf of the accused, some questions were missed to be asked during the cross examination of the witness of the prosecution. She submitted that as observed in the order passed by the learned Judge below application Exh. 196, cross-examination of both the witnesses was over in the month of March, 2007 and after the period of about more than one year, the application Exh. 196 was made for recalling witness no.1 and 3 for their further cross-examination. She submitted that five more witnesses were already examined by the prosecution and since no extra-ordinary circumstances were pointed out for recall of the two witnesses, the learned Judge was justified in not entertaining the subsequent applications Exh. 269 and 306, by the impugned order.