(1.) THE instant Criminal Revision Application has been preferred against the order dated 6.5.2013 passed by 1st District and Additional Sessions Judge, Latehar in S.T. No. 52 of 2011, whereby the petition filed under Section 311 of the Cr.P.C. for recall and cross -examination of P.Ws. 2 & 3 was rejected.
(2.) LEARNED counsel for the petitioner has submitted that it would be evident from Annexure -2 i.e. the application filed under Section 311 Cr.P.C. that accused petitioner could not cross -examine P.Ws. 1, 2 and 3 namely, Jaibuna Bibi, Md. Israil Ansari and Enamul Ansari respectively regarding the manner of occurrence and the material facts could not be brought on record but the trial court has rejected the application under Section 311 Cr.P.C. without appreciating the proposition of law. The object of 311 Cr.P.C. is that there should not be failure of justice on account of mistake of either party in bringing the valuable evidence on record and the cardinal principle being that such evidence is essential for just decision of the case and the court has the power to exercise it at any stage. In support of his contention he has relied upon a decision in the case of Zahira Babibullah Sheikh and Anr. vs. State of Gujrat and Others, reported in : (2006) 3 Supreme Court Cases 374. Learned counsel for the petitioner has also submitted that in a case where counsel for the defence had died even after cross -examination the Apex Court had allowed the cross -examination on the ground that the defence strategy could not be known to the newly appointed conducting lawyer in support of his contention he has relied on the decision in the case of Hoffman Andreas vs. Inspector of Customs, Amritsar reported in : (2000) 10 SCC 430.
(3.) HEARD the parties. It is settled principle that the powers of Section 311 of the Cr.P.C. can be invoked either by the prosecution or the defence or even by the court, suo motu, for summoning, examining, recalling or re -examining any person or the witnesses if it appears to the court that the evidence is essential for just decision of the case however such powers are to be exercised sparingly in the given facts and circumstances of the case. The power is exercised by the court for ascertaining the truth by adducing best available evidence either by the defence or the prosecution. In the instant case it is evident that in the application the prayer was made for recall of the said witnesses on the ground that they could not be cross -examined in detail on the point of manner of occurrence. In the impugned order it is stated that P.Ws. 1, 2 and 3 were examined and cross -examined on 24.1.2012 and thereafter this application was filed on 16.4.2013. Admittedly, the court has exercised the power judiciously considering the fact that when any power is vested in a authority then such authority has an obligation to exercise the power with greater caution and in the instant case it is revealed that the court below has considered and concluded that P.Ws. 2 and 3 were examined and cross -examined at length on the point of manner of occurrence and he has rejected their recall however it has allowed the prayer for recall of P.W. -1 as he was not cross -examined at length on the aforesaid aspect.