The power under Section 311 of the Code of Criminal Procedure must be exercised judiciously, with great caution and circumspection, to ensure fair trial and proper opportunities for all parties, and to meet the ends of justice for strong and valid reasons.

JUDGMENT :

ROHIT B. DEO, J.

1. With consent the application is finally heard at the admission stage.

2. Inherent power under section 482 of the Code of Criminal Procedure (Code) is invoked to assail the order dated 07.12.2020 rendered by the Sessions Judge, Gadchiroli in Sessions Trial 42 of 2020 whereby the application (Exh.53) preferred by the applicant herein under Section 311 of the Code seeking recall of witnesses, is rejected.

3. The applicant - who shall be referred to as the accused hereinafter - is facing trial under Section 302 of the Indian Penal Code on the charge of having murder his wife by setting her afire.

4. The accused was provided with legal aid since he did not have means to engage private lawyer.

5. The prosecution examined Mr. Manu Ranjan Mandal PW-1 on 31.08.2200, Mr. Devendra Biswas PW-2 on 22.09.2020, Mr. Balram Rai PW-3 on 22.09.2020, Mr. Gautam Bose PW-4 on 22.09.2020, Laxmi Biswas PW-5 on 01.10.2020, Anima Sajal PW-6 on 01.10.2020, Avinash Bodalkar PW-7 on 13.10.2020, Mr. Jitendra Gadewar PW-8 on 23.10.2020, Avinash Mandal PW-9 on 23.10.2020, Mr. Rajkumar Cinchekar PW-10 on 02.11.2020, Pushpa Kachode PW-11 on 10.11.2020, Digambar Dugane PW-13 on 04.12.2020, Amol Gupta PW-14 on 04.12.2020 and Nisha Khobragade PW-15 on 04.12.2020.

6. The accused preferred an application under Section 311 of the Code on 05.12.2020 and the relevant paragraphs read thus:

2. That, the accused is an under trial prisoner and he was provided with a counsel from Legal Aid Services to defend his case. That the said counsel had conducted his case and cross-examined PW-1 to PW-14 amongst the prosecution witnesses. It is specifically submitted that, the accused being detained in jail, he couldn’t meet his earlier counsel to furnish necessary instructions. The fact remains that, the necessary facts which needs to be bring on record through cross-examination, to defend the case of accused was not brought.

3. That, now the accused engaged another counsel and furnished necessary instructions through Video Conferencing to him. That, on perusal of case record coupled with the furnished instructions of the accused it seems that the truth remained to put before the Hon’ble Court for doing justice. Hence, out of the witnesses examined by the prosecution the following witnesses are utmost necessary to be recalled for the cross-examination.

PW-1 Manoranjan Mandal

PW-6 Anima Nalin Sajjal

PW-8 Jitendra Ganediwar

PW-12 Dr. Balmukunda Paliwal

4. That, the recalling of above mentioned witnesses are essential for the just decision of the case and to prevent failure of justice. It will not cause any prejudice to the prosecution, on the contrary the denial will greatly prejudice the accused in his defence.

7. The prosecution responded (Exh.54) by opposing the application under Section 311 of the Code. The prosecution contended that PW-6 Mrs. Anima is closely related to accused and the intention of recalling her is likely to bring on record admissions in favour of the accused. The prosecution then contended that PW-12 and PW-8 are sufficiently cross-examined by the previous counsel. PW-12 is the Doctor who examined the deceased and issued the fitness certificate and PW-8 is the Executive Magistrate who recorded the dying declaration. The prosecution then contended that PW-1, who is the father of the deceased, is not an eye witness and he too is cross-examined. The prosecution implicitly argues that the nature and extent of the cross-examination necessary for the just decision of the case, is not spelt out with particularity. Lastly, the prosecution contended that the application under Section 311 of the Code is moved only to protract the trial.

8. The learned Sessions Judge observed that it is not the case of the accused that Advocate Mr. Bhoyar who cross-examined the witnesses, did not conduct the cross-examination effectively or that he conducted the cross-examination hampered by want of instructions.

9. The learned Sessions Judge then opined that since Advocate