IMPORTANT POINT
Once the witness was examined in-chief and cross-examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in this appeal is to the judgment of the learned Single Judge of the Rajasthan High Court, allowing the application filed by respondent nos.2 and 3. The said respondents had questioned the correctness of the order dated 14.8.2007 passed by the learned Additional Sessions Judge, (Fast Track), Parbatsar, rejecting the application made by the accused in terms of Section 311 of the Code of Criminal Procedure, 1973 (in short ‘Code’).

3. A brief reference to the factual aspects would suffice:

The respondent nos.2 and 3 are facing trial for the commission of offences punishable under Sections 147, 452, 364, 302/149 and 201/149 of the Indian Penal Code, 1860 (in short ‘IPC’). Various witnesses were examined from time to time including Nandaram (PW-5) and Bhopalaram (PW-3). Nandaram was examined and cross-examined on 21st November, and Bhopalaram was examined and cross-examined on 7th June, 2006. One of the accused Shrikant was claimed to be a minor and because of that he was tried before the Children’s Court. In that case also Bhopalaram was examined as a witness on 9th January, 2007. In his evidence Bhopalaram did not support the prosecution version. Similarly, Nandaram was examined before the Children’s Court sometime in November, 2006. An application was filed by the accused persons before the Trial Court in terms of Section 311 of the Code with the prayer that Nandaram and Bhopalaram may be re-summoned for cross-examination with reference to their statements before the Children’s Court. The trial Court found the prayer to be not acceptable and rejected the same. An application under Section 397 read with Section 401 of the Code was filed before the High Court questioning the correctness of the order dated 14.8.2007 rejecting the application made. The High Court by its impugned judgment allowed the petition and directed the court below to recall and re-examine Bhopalaram and Nandaram. The High Court for the purpose of accepting the prayer recorded as follows:

“In the present case, it is not in dispute that Bhopalaram and Nandaram were examined as prosecution witnesses before the Children Court, Ajmer and their testimony in that case is certainly relevant in the case relating to the petitioners. The reliability of the witnesses is required to be examined by the Court after hearing the arguments and at this stage it shall not be appropriate to apprehend that witnesses Bhopalaram and Nandaram would have been won over. In the peculiar facts and circumstances of the case I am of considered opinion that the court below erred while rejecting the application preferred by the petitioners under Section 311 Cr.P.C. The court should have recalled Bhopalaram and Nandaram for cross examination afresh by invoking powers under Section 311 Cr.P.C.”

4. Learned counsel for the appellant submitted that the High Court ought to have accepted the prayer as made because the parameters governing Section 311 of the Code had no application to the facts of the case. Learned counsel for the State supported the stand of the appellant. Learned counsel for the respondent nos. 2 and 3 submitted that ultimately the best evidence has to be brought on record for doing justice and the High Court’s order, therefore, does not suffer from any infirmity.

5. 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 if his evidence appears to it to be essential to the just decision of the case.”

6. The section is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequences, the first part gives purely discretionary authority to a Criminal Court an