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IN THE HIGH COURT OF BOMBAY
Bharat P.Deshpande, J.
Sada Ana Bagkar - Appellant
Versus
Bank of Baroda - Respondent
Writ Petition No. 325 of 2023
Decided On : 20-12-2023
RECALL - CROSS-EXAMINATION - The court addressed the denial of the defendant's request to recall a witness for further cross-examination, emphasizing the importance of effective cross-examination in ensuring a fair trial. The court interpreted the legal provisions regarding witness recall, distinguishing the current case from precedent, and concluded that the defendant was entitled to an opportunity to cross-examine the witness adequately, subject to the payment of costs.
Fact of the Case:
The petitioner, a defendant, sought to recall a witness (PW-1) for further cross-examination after his junior colleague had only partially cross-examined the witness due to the defendant's personal difficulties. The trial court rejected the application for recall, prompting the defendant to challenge this decision.
Finding of the Court:
The court found that the trial court had erred in denying the defendant an effective opportunity to cross-examine PW-1, as the initial cross-examination was insufficient and did not address specific defenses raised in the written statement.
Issues: Whether the trial court's refusal to allow the recall of PW-1 for further cross-examination constituted a denial of the defendant's right to a fair trial.
Ratio Decidendi: The court distinguished the current case from the precedent set in Ram Rati, noting that the defendant's request for recall was based on the need for effective cross-examination rather than an attempt to fill gaps after completion of cross-examination. The court emphasized the necessity of allowing the defendant to present a complete defense.
Final Decision: The court quashed the trial court's order, allowing the recall of PW-1 for further cross-examination, contingent upon the defendant depositing costs of Rs. 10,000.00 before the next hearing date.
JUDGMENT/ORDER
1. Heard Mr. A. Naik for the Petitioner and Mr. P. Karpe for the Respondent.
2. Rule.
3. Rule is made returnable forthwith. Heard the parties with consent for final disposal.
4. Order impugned in the present Petition is rejection of recall of plaintiff's witness for further cross examination.
5. Mr. Naik appearing for the Petitioner/Defendant submits that when the matter was fixed for cross examination of PW-1, he was having some personal difficulty and therefore he instructed his junior colleague to cross examine PW-1 partly and to request for further time. He submits that his junior colleague only put suggestions to PW-1 and thereafter the cross of PW-1 was closed. The Petitioner/Defendant filed an application for recall of PW-1 by disclosing specific grounds which are found in para no. 2 and 3. The Learned Trial court by its impugned order dtd. 2/5/2023 rejected such application and thereby denied the opportunity to crossexamine PW-1 effectively. He submits that the Petitioner/Defendant has raised specific defence in the Written statement claiming that no loan was advanced to him. Since he was having personal difficulty, the junior colleague cross-examined PW-1 only with regard to suggestions. He thus submits that an effective opportunity was not given to cross-examine PW-1.
6. Per contra, Mr. Karpe appearing for Respondent would submit that the impugned order passed by the Trial Court needs no interference as no case is made out for recall of the witness. He placed reliance in the case of Ram Rati V/s Mange Ram (D), through Lrs. and Ors. Civil Appeal No. 1486/2016 decided by the Apex Court on 23/2/2016 reported in (2016) 11 SCC 296.
7. Rival contentions fall for determination.
8. In para No. 8 of the impugned order, the learned Trial Court has mentioned the specific dates on which the matter was adjourned for evidence. Record shows that examination in chief of PW-1 was recorded on 30/11/2021. On three subsequent dates the defendants sought time and the same was granted. On 13/4/2022, the witness was present in the Court, however, the matter was kept back and thereafter the witness disappeared stating that his advocate will be coming. The Learned Trial Court has specifically observed and recorded in the deposition on 13/4/2022 that the witness disappeared from the Court at around 04.00 p.m. The learned Trial Court granted final opportunity to the Plaintiff/Respondent to lead further evidence and the matter was adjourned to 29/6/2022.
9. The application for recall was filed disclosing the specific reasons and supported by the affidavit of the defendant. It is no doubt true that on 29/6/2022 the junior colleague of Mr. Naik conducted cross examination of PW-1. Perusal of such cross examination reveal that only suggestions were put to the witness, however, the learned Trial Court closed the cross examination of PW1. Admittedly the learned Junior Colleague did not request for further time for cross examination. A specific defence raised by the Defendant/Respondent in the written statement is not mentioned in the cross examination which was conducted by the junior colleague of Advocate for the Petitioner. This is the reason which is stated in para 2 of the application for recall of PW-1.
10. In Ram Rati (Supra) the Plaintiff after examining himself and his witnesses and after completion of cross examination filed an application for recall of the witness which was opposed by the Respondent. In that context Apex Court has observed that the party who is already examined himself and whose cross examination is completed cannot be allowed to recall/re-examine in order to fill up the lacunas. The matter in hand is totally different wherein the application is not filed by the plaintiff but by the Defendant with the prayer to recall PW-1 to effectively cross-examine the said witness.
11. Thus the ratio laid down in Ram Rati (Supra) will not be helpful to the Respondent.
12. Cross-examination of PW-1 started only on 29/6/202
The right to effective cross-examination is fundamental to a fair trial, and parties must be given adequate opportunities to present their defenses, particularly when prior cross-examinations were in....
The duty of the court is to take necessary steps to get to the truth of the matter and decide cases based on relevant material, while cautioning against routine use of the power to recall witnesses a....
The power to recall a witness under Order 18 Rule 17 is discretionary and should not be used to exploit evidentiary gaps; it must prioritize justice and not disrupt trial proceedings.
The power to recall a witness under Order 18 Rule 17 CPC is intended to clarify doubts and not to fill omissions in evidence or to allow for further elaboration on left-out issues.
Trial court's discretionary recall of witnesses under Order 18 Rule 17 CPC upheld for procedural fairness despite delay, subject to costs.
Recall of witness – Paramount requirement is just decision and for that purpose essentiality of a person to be recalled and re-examined has to be ascertained.
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