STATE OF MEGHALAYA Vs. TRAIBORLANG KHONGRYMMAI

JUDGEMENT

(1.) This criminal petition is filed challenging the impugned order dtd. 9/8/2023 passed by the Judicial Magistrate First Class, Sohra Sub-Division, East Khasi Hills District in GR Case No. 1(1) of 2015 (renumbered as GR. No. 1(A) 2021) under Sec. 403/406/409/420 IPC whereby the application filed by the respondent under Sec. 311 Cr.PC for recalling the PW-2 was allowed.

(2.) The respondent as accused is facing trial in GR Case No. 1(1) of 2015 under Sec. 403/406/409/420 IPC pending before the Court of the Judicial Magistrate First Class, Sohra. In the said trial, as many as 18 prosecution witnesses were examined. Before the recording of the statement of the respondent under Sec. 313 Cr.PC, an application under Sec. 311 Cr.PC was filed on behalf of the respondent seeking recall of PW 2 for re-examination which was allowed by the Trial Court by order dtd. 9/8/2023. Assailing the said order of the Trial Court, the State has filed the present criminal petition.

(3.) Mr. N.D. Chullai , learned AAG appearing for the petitioners submits that recalling of PW-2 on the ground that the previous counsel did not put certain question to the said witness cannot be a valid ground under Sec. 311 Cr.PC. He submits that mere change of counsel or incompetence of counsel cannot be a legally justifiable ground for recalling of witness in a criminal trial. He further submits that the reason cited in the application for recall and the observation made by the learned Trial Court in the impugned order dtd. 9/8/2023 do not project existence of any strong and valid reason for allowing the application. He contends that the PW-2 was thoroughly examined by the prosecution as well as the defence and hence there was no justifiable reason for the Trial Court to allow the application of the respondent. The learned AAG places reliance on the decisions of the Apex Court reported in (2016) 2 SSC 402, State (NCT of Delhi) Vs. Shiv Kumar Yadav and Anr. (para 15, 17 and 27) to contend that recall of witness on the ground that cross examination was not proper for reasons attributable to a counsel is not a valid ground and there cannot be a rule that a re-trial must follow on every change of counsel. He submits that the impugned order is passed in defiance of the settled principle of law and is liable to be set aside and quashed.