IMPORTANT POINTS
(1) Recall of witness – Power under Section 311 Cr.P.C. is to be exercised with great caution and only for strong and valid reasons.
(2) Witnesses cannot be expected to face hardship of appearing in Court repeatedly, particularly in sensitive cases.

JUDGMENT

SATISH CHANDRA SHARMA, J.

1. The present appeal arises out of the judgment and order dated 14.03.2024 passed by the High Court of Tripura at Agartala (hereinafter referred to as the “High Court”) in Criminal Petition No. 07 of 2024, whereby the High Court set aside the order dated 06.02.2024 passed by the learned Additional Sessions Judge, West Tripura, Agartala (hereinafter referred to as the “Trial Court”) in Sessions Trial (Type-1) No. 38 of 2017 and allowed the application filed under Section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “CrPC”), permitting the recall of the prosecutrix (PW-1) for further cross-examination.

2. The facts necessary for adjudication of the present appeal are as follows:

2.1. On the basis of a written complaint dated 27.06.2016 lodged by the prosecutrix, FIR No. 2016 WAW 052 was registered against the Respondent-accused, alleging commission of offences punishable under Sections 342, 376(1) and 506 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”).

2.2. The allegation in the complaint is that on the morning of 27.06.2016, after the husband of the prosecutrix left for Sonamura Court in connection with his professional work, she visited the residence of the Respondent at about 10:30 a.m. for discussions relating to house rent. It was alleged that the Respondent forcibly confined her inside the room, tore her clothes and committed rape upon her. It was further alleged that the Respondent threatened to kill the prosecutrix if she disclosed the incident to anyone. Thereafter, the prosecutrix, in a distressed condition, returned to her rented house and informed her husband about the incident.

2.3. Upon the registration of the FIR, investigation was undertaken and statement of the prosecutrix was also recorded under Section 164 CrPC. Thereafter, upon completion of investigation, chargesheet was filed and charges were framed on 09.08.2016. The trial commenced in 2017.

2.4. During the course of trial, the prosecutrix (PW-1) was first examined in chief and cross-examined on 04.06.2018, followed by further cross-examination on 10.07.2018. Thereafter, the prosecution filed an application under Section 311 CrPC seeking recall and re-examination of the prosecutrix. The said application initially came to be rejected by the Trial Court. Aggrieved thereby, the prosecution approached the High Court of Tripura by filing Criminal Petition No. 02 of 2019. The High Court, by judgment dated 30.05.2019, set aside the order passed by the Trial Court and permitted re-examination of the prosecutrix. Pursuant thereto, prosecutrix was further examined and re-cross examined on 08.08.2019 and 02.11.2019.

2.5. During the course of trial, and after approximately four years from the re-examination of the prosecutrix (PW-1), on 14.12.2023 the Respondent filed an application under Section 311 of the CrPC seeking recall of PW-1 for further cross-examination. The application set out 94 questions. The principal ground urged in the application was that due to an oversight, certain aspects emerging from the Call Detail Records (hereinafter referred to as “CDRs”) of the mobile number of the prosecutrix and the Respondent could not be brought on record.

2.6. The prosecution opposed the said application contending that the prosecutrix had already been extensively examined, cross-examined, re-examined and re-cross-examined, and that the application was nothing but an attempt to protract the proceedings in a case pending since the year 2017.

2.7. The learned Additional Sessi