The court held that Section 311 CrPC allows the recall of witnesses to correct typographical errors to ensure justice, distinguishing such mistakes from substantive weaknesses in a case.

ORDER :

1. The Criminal Petition, under Section 482 of the Code of Criminal Procedure, 1973 (CrPC), is filed against the Order dated 11.03.2024 in Crl.M.P.No.284 of 2024 in S.T.C.No.27 of 2022 on the file of the Principal Civil Judge (Junior Division)-cum-Judicial Magistrate of First Class, Kowur, whereby petition filed by 2nd respondent/ complainant, under Section 311 CrPC to recall P.W. 1 to clear ambiguity in her cross-examination, was allowed.

2. A private complaint was filed by 2nd respondent herein/complainant against the petitioners herein/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act, 1881’), and the same was taken on file as S.T.C. No.27 of 2022 by the learned Magistrate. Trial began in the S.T.C. 2nd respondent herein/complainant was examined as P.W. 1 and she was cross-examined by the counsel for the accused; At that stage, the petition in Crl.M.P.No.284 of 2024 has been filed in the S.T.C., under Section 311 CrPC, seeking to recall P.W.l to clear ambiguity in her cross- examination. By the impugned Order dated 11.03.2024 in the said Crl.M.P., the Court below allowed the petition. Challenging the same, the present Criminal Petition is filed.

3. Learned counsel appearing for the petitioners/accused contended that the learned Magistrate ought not to have allowed the petition filed under Section 311 CrPC merely to rectify material admissions made by P.W.l , on the ground of typographical mistakes. According to him, the process adopted is nothing but cut and paste process. Learned counsel further submitted that P.W.l affixed her signatures in the deposition in the presence of her counsel and the Presiding Officer, and hence, it cannot be termed either as typographical error or any other mistake which can be taken into account to permit 2nd respondent/complainant to correct the same. According to him, allowing the Crl.M.P. filed to recall P.W.l for the said purpose would amount to rectifying the admissions or other material facts already recorded. Hence, he prays to set aside the impugned order and dismiss the Crl.M.P.

He relied on a decision in Rajendraprasad v. Narcotic Cell through its officer-in-charge, Delhi , (1999) 6 SCC 110 wherein it is held thus: (paragraph 8)

“8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.”

He also relied on an Order of the High Court of Chattisgarh, Bilaspur dated 16.02.2023 in Cr.M.P.No.334 of 2023, wherein it is held thus: (paragraph 7).

7. Reverting back to the facts of the present case, after perusing the statement of the prosecutrix and the application preferred by the Petitioner/accused for recalling the prosecutrix for further cross-examination, it is evident that though the prosecutrix has been examined on 02.06.2022 but after 6 months, this Petition has been filed on the ground that earlier Counsel has not put certain suggestions to her for ascertaining her age, which is not a ground to recall the prosecutrix and the Petitioner has also not filed any foundation or substantial material through which this Court can think over that her cross-examination is necessary. It is well settled that no party in a trial can be foreclosed from correcting errors and if proper evidence was not adduced or a relevant material was not brought o