The court has the power under Section 311 of the Cr.P.C. to summon and examine or recall and re-examine any witness if their evidence appears to be essential to the just decision of the case. This power must be exercised judiciously and in the interest of justice. Cross-examination is crucial for the discovery of truth in criminal proceedings.

JUDGMENT

M. Nagaprasanna, J. - Petitioners are before this Court calling in question an order dated 01.07.2022 passed by the XXXII Additional Chief Metropolitan Magistrate, Bangalore rejecting the application of the petitioners filed under Section 311 of the Cr.P.C. seeking permission to cross-examine P.Ws.1 to 3.

2. Heard Sri.Melanie Sebastian, learned counsel appearing for the petitioners and Smt.K.P.Yashodha, learned High Court Government for the respondent No.1.

3. Brief facts that lead the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows:

A crime comes to be registered in Crime No.16 of 2015 for offences punishable under Sections 341, 34, 504, 323 and 354 of the IPC. The police, after investigation, have filed a charge sheet and the proceedings are pending in C.C.No.6842 of 2015. The issue is not with regard to the merit of the allegations against the petitioners. In the said proceeding, the petitioners file an application under Section 311 of the Cr.P.C. seeking recalling of witnesses 1 to 3. The first witness for the purpose of further cross-examination and witnesses 2 and 3 for cross-examination. The concerned Court in terms of its order dated 01.07.2022 rejects the application on the ground that opportunity earlier granted has not been utilized by the petitioners for cross-examining the witnesses 1 to 3. It is this order that is called in question by the petitioners.

4. The learned counsel appearing for the petitioners would contend that P.Ws.2 and 3 have never been cross-examined and P.W.1 has been partially cross-examined. It is therefore necessary for the petitioners to cross-examine P.Ws.2 and 3, failing which, it would become a proceeding where there is no cross-examination of P.Ws.2 and 3.

5. On the other hand, the learned High Court Government Pleader appearing for 1st respondent would seek to refute the submissions to contend that the petitioners are filing repeated applications, only as a ruse to drag on the trial and the petition deserves to be rejected.

6. I have given my given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.

7. The afore-narrated facts are not in dispute. The petitioners are facing trial for offences punishable under Sections 341, 34, 504, 323 an 354 of the IPC. The petitioners file an application under Section 311 of the Cr.P.C. seeking recall of P.Ws.1 to 4 on 21.08.2019. This comes to be allowed and the matter was posted for cross-examination of P.Ws.1 to 3 on 29.03.2021. Later, they file another application seeking recall of witness 1 to 3 for the purpose of cross-examination. It is an admitted fact that P.W.1 has been cross-examined partially and P.Ws.2 and 3 have not been cross-examined at all. The reason for such non cross-examination is the absence of the learned counsel for the petitioners on 29.03.2021 when the matter was listed for the cross-examination of witnesses 1 to 3. Therefore, it would become a case where the petitioners have never cross-examined witnesses 2 and 3 and partially cross-examined the P.W.1.

8. In the light of the aforesaid circumstance, I deem it appropriate to permit the petitioners to cross-examine witnesses 1 to 3 completely on a particular day fixed by the concerned Court for which the cost of travel of those witnesses shall be borne by the petitioners.

9. It is trite that discovery of truth is the soul of the criminal justice system. Therefore, there cannot be a case where the petitioners have not cross-examined any witnesses. If cross-examination is not permitted by allowing the application under Section 311 of the Cr.P.C., it would run foul of the judgment of the Apex Court in the case of VARSHA GARG V. STATE OF MADHYA PRADESH 2022 SCC OnLine SC 986. The Apex Court after considering the entire spectrum of the law has held as follows:

'31. Having clarified that the bar under Section 301 is inapplicable and that the appellant