UDAYA GOWRI Vs. A P RAO

JUDGEMENT

(1.) The petitioner is a de facto complainant. She was examined as P.W. 1. After detailed cross-examination, the evidence was closed on 5-6-1990. As a matter of fact, cross-examination was conducted on 22-12-1988, 23-12-1988, 29-12-1988, 2-1-1989, 9-1-1989, 11-1-1989, 12-1-1989, 28-1-1989, 19-1-1989, 20-1-1989 and 24-1-1989 : she was recalled for further cross-examination on 1-6-1990 and 6-6-1990. It is thereafter that the respondent first accused filed an application on 20-3-1991 to recall P.Ws. 1 and 6 for further cross-examination. No reasons are mentioned as to why the Court shall recall witnesses for further cross-examination excepting a vague and general statement that the previous advocate on record, who appeared for the accused, "could not put some important questions" and this caused prejudice to A-1. The Trial Judge passed order "Heard. Re-call P.Ws. 1 and 6 on payment of process on 24-4-1991." Counsel for the petitioner submits that the requirements of S. 311 of the Code of Criminal Procedure have not been adverted to either in the petition which the accused filed, or in the order passed by the Trial Judge.

(2.) It is elementary that for ordering recall of a witness for further cross-examination Trial Judge shall be satisfied that, for a just decision of the case and on a perusal of the evidence of that person that such re-call and re-examination is essential. This we find is a jurisdictional pre-condition necessary for ordering recall of witnesses for further cross-examination under S. 311 of the Code of Criminal Procedure. Learned Trial Judge has not adverted to this essential jurisdictional requirement in passing the order impugned in these proceedings.

(3.) After hearing counsel on both sides, the only course open for us is to allow this petition and set aside the order of the learned Trial Judge recalling P.Ws. 1 and 6 for further Cross-examination.