MOHANBHAI BABNBHAI MANE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of present Criminal Revision Application u/s 397 r/w section 401 of the Code of Criminal Procedure, 1973, the petitioner - original accused challenges order dated 1.11.2018 passed in Criminal Case No.6400 of 2000, whereby the learned trial Judge refused to exercise powers u/s 311 of the Code of Criminal Procedure, 1973 (for short "the Code") to recall the witness, namely the complainant as per application Exh.197.

(2.) Having heard the submissions made at bar and considering the decisions rendered in case of Rajaram Prasad Yadav Vs. State of Bihar and another reported in (2013) 14 SCC 461, State (NCT of Delhi) Vs. Shiv Kumar Yadav and another reported in (2016) 2 SCC 402 and Mukundrai Laxmishankar Paneri Vs. State of Gujarat and another rendered by this Court in Criminal Revision Application No.802 of 2017,, learned advocate appearing on behalf of the petitioner would submit that the witness can be recalled at any stage of the trial and if the complainant is recalled and cross-examination is permitted on certain vital questions with respect to the partnership firm, no prejudice would cause to the complainant and therefore, the learned trial Judge ought to have exercised its power u/s 311 of the Code.

(3.) No doubt, the Court is bound to give fair trial and such fairness requires to all concerns i.e. victim and accused. It is also true that witness can be recalled at any stage of the trial so long the Court is seized with the matter. But while exercising the power u/s 311 of the Code, the Hon'ble Apex Court in case of State of State of Haryana v. Ram Mehar and others reported in AIR 2016 SC 3942, in para 34 and 37 made following observations:-