The discretion of the court to summon witnesses under Section 311 of Cr.P.C. to ensure a fair trial and just decision.

ORDER :

The present Criminal Petition is filed seeking to quash the Order dated 29.04.2022 passed in Criminal Miscellaneous Petition No.1010 of 2022 in C.C.No.3042 of 2021 on the file of the Court of Special Judicial Magistrate of First Class (P&E)-cum-VIII Additional Metropolitan Magistrate & VIII Additional Junior Civil Judge, Visakhapatnam.

2. The petitioners herein are accused 4 to 6 in the above referred Calendar Case, which was registered for the offence under Section 34(a) of A.P.Excise(Amendment) Act, 2020. They filed the above mentioned Miscellaneous Petition seeking to recall P.Ws.1 to 4 as the counsel for the petitioners could not cross examine the said witnesses. The respondent-State opposed the said petition and by the impugned Order, the same was dismissed. Hence, the present quash petition.

3. The learned counsel for the petitioners submits that the counsel for the petitioners/accused 4 to 6 appearing in the Trial Court was suffering from ligament injuries and therefore, he could not attend the Court, as a result of which, cross examination of P.Ws.1 to 4 could not be conducted. The learned counsel submits that in fact the prosecution witnesses were not present on several dates, though the petitioners’ counsel was ready to examine them and ignoring the said aspect, the learned Magistrate went wrong in observing that no cross examination was done by the petitioners. Be that as it may. The learned counsel would submit that cross examination of the above said witnesses is very much essential and the learned Trial Court without appreciating the matter in a proper perspective, went wrong in dismissing the petition by making certain observations, contrary to the material on record. He submits that the petitioners/accused are denied a fair opportunity to establish their case by cross examining the witnesses and unless the witnesses are cross examined, the petitioners would not be in a position to establish their innocence.

4. Relying on the decisions of the Hon’ble Supreme Court in P.Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56, State represented by the Deputy Superintendent of Police v. Tr. N.Seenivasagan, 2021 SCC OnLine SC 212 and a decision of a learned Single Judge of this Court in Criminal Petition No.6091 of 2020 dated 30.12.2020, the learned counsel submits that the order under challenge is liable to be set aside.

5. The learned Assistant Public Prosecutor appearing for the respondent-State, on the other hand, submits that the Order passed by the learned Trial Court contains cogent reasons, in accordance with Law and the same warrants no interference by this Court. He accordingly prays to dismiss the Criminal Petition.

6. This Court has considered the submissions made by the learned counsel for both sides and perused the material on record.

7. In P.Sanjeeva Rao’s case referred to supra, the Hon’ble Supreme Court was dealing with an appeal against the order of High Court in a Criminal Revision Petition, confirming the order passed by the Trial Judge. In the said case, applications were filed under Sections 242 and 311 Cr.P.C., to recall prosecution witnesses for cross examination. The prosecution opposed the said applications, interalia, contending that recall of P.Ws.1 and 2 for cross examination more than 3 ½ years, after they had been examined in relation to an incident that had taken place seven years back was bound to cause prejudice to the prosecution. The petitions were dismissed. While setting the said order as confirmed by the High Court aside, the Hon’ble Supreme Court at para No.12, referred to the observations made in Hanuman Ram v. The State of Rajasthan & Others, (2008) 15 SCC 652, the relevant portion of which, may be extracted for ready reference:

“12………. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from