The central legal point established in the judgment is the interpretation and application of Sec. 311 of the Cr.P.C., emphasizing the discretionary and obligatory nature of the power to recall and re-examine witnesses if their evidence appears to be essential to the just decision of the case, and the need for the power to be exercised judiciously and in the interest of justice.

JUDGMENT/ORDER

1. Heard Sri. Shiva Prasad S., learned counsel appearing for the petitioner and Smt. K.P. Yashodha, learned HCGP appearing for the respondent.

2. The petitioner is before this Court calling in question an order dtd. 6/8/2022 passed by the Hon'ble IX Additional District and Sessions Judge, Bengaluru rejecting the application of the petitioner filed under Sec. 311 of the Cr.P.C. seeking recalling of the PW-1 to PW-3 in S.C.No.354/2019, where the petitioner is facing the allegations for offence punishable under Sec. 302 of the Indian Penal Code (the 'IPC' for short).

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

The petitioner gets embroiled in crime No.137/2019 for the offence punishable under Sec. 302 of the IPC. The police after investigation filed a charge sheet for the aforesaid alleged offence under Sec. 302 of the IPC on 10/9/2019 and the case was then committed to the Court of Sessions on 4/10/2019. The issue in the lis is not with regard to the merit of the proceedings before the concerned Court in S.C.No.354/2019. It transpires that the evidence of the prosecution commenced on 4/11/2020 and after about two years, the petitioner files an application under Sec. 311 of the Cr.P.C. seeking recalling of PW-1 to PW-3, on the ground that they were short examined at the time when they were initially examined on 4/11/2020. Objections were filed by the prosecution to the said application on 27/7/2022. The Court on considering the application averments and the objections, rejects the application filed by the petitioner on 6/8/2022. It is that rejection that drives the petitioner to this Court in the subject petition.

4. The learned counsel appearing for the petitioner submits that the further cross-examination by recalling of PW-1 to PW-3 are imperative, in the light of the fact that the petitioner is facing trial for offences punishable under Sec. 302 of the IPC and if convicted would be a life sentence and therefore, the application was filed for seeking cross- examination by recalling the PW-1 to 3 and the concerned Court has rejected it by a perfunctory order.

5. The learned HCGP appearing for the respondent would put up vehement opposition to the contents in the petition seeking to demonstrate that the petitioner has lost the opportunity, not once, but twice and the fact that mere change in the counsel would not enure to the benefit of the accused to claim recall of the witnesses.

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

7. The afore-quoted facts are not in dispute with regard to the petitioner getting involved in crime No.137/2019 and the matter pending in S.C.No.354/2019. The issue is with regard to an application filed by the petitioner seeking recalling of PW-1 to PW-3 for further cross-examination on the ground that the counsel he had earlier, had partly cross-examined, at the time when the Court were closed due to Covid-19. The concerned Court rejects the application by the following order:

"It is revealed that the IO has submitted the charge sheet against the accused for the offence punishable u/s 302 of IPC.

This court after hearing both sides, has framed the charge against the accused who did not plead guilty but claims to be tried. Then, this court has issued summons to the witness and accordingly the prosecution has examined PW.1 to 5 and got marked Ex.P.1 to 7 and MO.1 to 6.

The accused has taken time on the date on completion of chief examination of PW.1 and the same was granted to the accused then the accused has partly cross examined PW.1 on 10/11/2021 and on his request, further cross examination is deferred. Then PW.1 was fully cross examined on 1/12/2021.

The accused has also fully cross examined PW.2 and 3 on 1/12/2021.

Accordingly it is revealed that the accused has completed cross examination of PW.1 to 3 on 01-12- 2021.