H M PANDEY Vs. STATE

JUDGEMENT

(1.) THESE petitions coming on for orders on Wednesday the Eleventh day of October, 2000 and upon hearing the arguments of Mr. Dhesingu. Advocate for the Petitioner in both the petitions and of Mr. R. Shanmuga Sundaram, Public Prosecutor, High Court. Madras on behalf of the Respondent in both the petitions and having stood over for consideration and this day the Court made the following Order: This Criminal Original petition has arisen in this way : The Petitioner herein is the accused in Special C.C. No. 3 of 1999 on the file of the XI Additional Judge Special Judge No. 1. He stands charged for an offence under Sections 13(2) r /w. 13(l)(e) of the Prevention of corruption Act. A petition had been filed under Section 311, Cr. P.C. for examination of Certain Witnesses. Thereafter wards, the petitioner had filed the instant petition to recall 18 witnesses for cross -examination in the light of the fresh evidence let in by the prosecution. The learned Special Judge allowed the petition in part permitting the petitioner to recall 13 witnesses and cross examine them, but rejected his request so far as the other 5 witnesses are concerned. They are P.W. 2, P.W. 4, P.W. 32, P.W. 53 and P.W. 54. Aggrieved by the order passed by the learned Special Judge, the petitioner herein preferred the instant Criminal Original Petition to set -Aside the impugned order passed in Crl. M.P. No. 1484 of 2000 in Spl. C.C. 3/99 so far as rejection to recall 5 witnesses is concerned.

(2.) HEARD both the sides. It is conceded by both the sides that the prosecution has examined 77 witnesses and marked 194 Exhibits. In fact during the earlier occasion, the petitioner had preferred similar petition to recall 10 witnesses for cross -examination. The learned Special Judge permitted him to recall 8 witnesses. Pending examination of those witnesses, the instant petition has been filed to recall 18 witnesses. The learned Special Judge had accepted legal position that petition under Section 311, Cr. P.C. can be allowed at any time before final order is passed. But, at the same time, the genuineness of the request has to be considered. The learned Special Judge has stated in his order that P.W. 2 is hostile witness, who happens to be the son of the accused, and that P.W. 4 and P.W. 32 have already been examined by the accused. So far as P.Ws. 53 and 54 are concerned, the learned Special Judge opined that they are residents of Allahabad in Uttar Pradesh State and it will take considerable time to recall them, which, in turn, would cause unnecessary delay in concluding the trial.

(3.) BUT for the fact that the trial is at the concluding stage, the learned Public Prosecutor has not advanced any other arguments. The Apex Court and this Court have time and again pointed out that once when it is found that the evidence is essential for a just decisior then the witnesses can be recalled at any time before pronouncement of judgment and that the time factor would not some in the way.