important Points
First part of Section 311 is discretionary but the second part is mandatory and it applies to all proceedings, enquiries and trials under the Code.
Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Leave granted.

2.Challenge in this appeal is to the order passed by a learned Single Judge of the Rajasthan High Court, Jaipur Bench dated 20.2.2006 passed under Section 482 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) and order dated 2.3.2006 refusing to recall the said order i.e. 20.2.2006.

3.Background facts need to be noted in brief :

“On 17.2.2005 the elder sister of the complainant lodged a complaint before the police station alleging that she was married to one Shri Sakeel. After sometime, the family of the husband of her sister started demanding dowry and torturing her. When the complainant went to meet her sister, she saw several wounds on her person. It was stated that both sisters were beaten and the complainant was raped by her family members and friends of in-laws. First Information Report (in short the ‘FIR’) was lodged for alleged commission of offences punishable under Section 498A, 406 of the Indian Penal Code, 1860 in short the ‘IPC’). Since no case was found for alleged commission of offence punishable under Section 376 IPC, the said offence was not registered.”

4.Another complaint was lodged on 24.4.2005 in respect of the same alleged event in another police station where the case was registered for alleged commission of offence under Section 376 read with Section 120B IPC. The appellants were arrested and an application for bail was moved. The High Court rejected the bail application. According to the appellant matter was amicably settled and the complainant appeared before the trial court and her statement was recorded. Her statement was at variance with the statement recorded during investigation. Thereafter an application in terms of Section 311 of the Code was filed requesting for recording statement of the complainant afresh. This according to the appellants was at the behest of some local persons and enemies of the appellants. The trial court by Order dated 13.1.2006 held that it was a case where prosecution was trying to fill up lacunae of prosecution version and it was rejected.

5.Respondent No.1 preferred application under Section 482 of the Code for setting aside the order of the trial court.

6.On 20th February, 2006 the application was allowed. Thereafter an application was filed to recall the said order as no notice was issued to respondents in the petition. They also filed an application to be impleaded. The High Court by order dated 2.3.2006 rejected the application filed to recall the order dated 20.2.2006.

7.In support of the appeal, learned counsel for the appellants submitted that the High Court’s orders cannot be maintained because no reason has been indicated as to why the order of the trial court rejecting the prayer in terms of Section 311 of the Code was set aside. It was also submitted that since no notice has been issued to the appellants before the order was passed, the High Court erroneously rejected the prayer to recall the order.

8.Learned counsel for the respondent No.1 however submitted that this is a case where the High Court’s order cannot be faulted even though when the first order was passed on 20th February, 2006, no notice had been issued to the appellants. They had sought to be impleaded on their own motion before the order rejecting the prayer for recalling the order was passed.

9.In this context, reference may be made to Section 311 of the Code which reads as follows :

“311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

10.The section is manifestly in two parts. Whereas the word used in the first part is “may”, the s