IMPORTANT POINT
Recall of witness – Section 311, Cr.P.C. should be invoked when it is essential for just decision of case.

JUDGMENT :

AHSANUDDIN AMANULLAH, J.

1. Heard learned counsel appearing for the parties.

2. Leave granted.

3. The present appeal has been filed against the order dated 14.12.2021 in CRMM No. 40058/2021 (hereinafter referred to as the “Impugned Order”) passed by the High Court of Punjab and Haryana at Chandigarh (hereinafter referred to as the “High Court”) by which the prayer for recall of the appellant as a witness in the trial before the Court below for further examination has been rejected.

4. The brief facts relating to the case are that the appellant made a complaint against the accused that they, being ex-employees of his company, had stolen company data and used such data to manufacture equipment, which was being manufactured by the appellant’s company. During trial, before the Report from the Central Forensic Sciences Laboratory, Chandigarh (hereinafter referred to as “CFSL”) could come, the evidence of the appellant was recorded. However, when the CFSL expert who had prepared the Report was examined on 20.08.2021 by the Court, though he described the data which was found on the hard disks of the accused, but there was no reference as to whether they were comparable to/same in regard to what was allegedly stolen from the appellant’s company. Thus, under the circumstances, the appellant was constrained to apply for his recall as a witness, which was done within five days of the evidence of the CFSL expert being recorded i.e. on 25.08.2021. The same having been rejected, by the Trial Court and the High Court, the matter is before this Court.

5. Learned counsel for the appellant submitted that there was no previous occasion for him during the course of the trial to put any question with regard to comparison of data as the CFSL expert had clearly taken a stand that he had not submitted any report with regard to the comparison of the two sets of data. It was submitted that the comparison of the two sets of data was the main essence of the complaint and without the same, the trial itself would be reduced to a farce.

6. He further submitted that the courts erred in reckoning the delay counting it from the date of first lodging of the complaint though the same should have been considered from the date the cause of action arose i.e. on 20.08.2021 and the application was filed on 25.08.2021.

7. Learned counsel for respondents no. 2 to 9 submitted that the appellant is only indulging in dilatory tactics as he has every opportunity to make submissions, as he deems fit, during arguments which are yet to be concluded. Learned counsel further contented that the appellant cannot be, and should not be allowed to, fill up the lacunae left in the earlier round, at the current stage.

8. Learned counsel for the State joined the proceedings via video-conferencing.

9. Section 311¹ [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] of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.P.C.”) has engaged this Court’s attention before. We will advert to a few decisions of recent vintage. While overturning an order of the High Court allowing an application for recall of a witness, which was rejected by the trial Court, this Court held as under, in Ratanlal vs. Prahlad Jat, (2017) 9 SCC 340:

“17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a w