IMPORTANT POINT
Recall of witnesses – While dealing with an application filed under Section 311 of Cr.P.C., Court has to see whether application was filed by accused to delay proceedings or by prosecution to cover up lacunae.

ORDER

K. Lakshman, J.—This revision is filed to set aside the order dated 12.01.2022 passed in Crl.M.P.No.163 of 2021 in S.C.No.878 of 2021 by the I Special Sessions Jude for Trial of Cases relating to Atrocities against Women–cum–XVII Additional District & Sessions Judge, Ranga Reddy district at L.B. Nagar.

2. Heard learned Public Prosecutor for the petitioner/State. Despite service of notice, there is no representation on behalf of the respondent/accused.

3. Perusal of the record would reveal that the respondent herein is sole accused in S.C.No.878 of 2021. The offences alleged against the accused are under sections 302, 376, 379 and 201 of IPC. The accused had filed a petition under Section 311 of Cr.P.C. vide Crl.M.P.No.163 of 2021 in S.C.No.878 of 2021 seeking to recall P.Ws.1, 2, 4, 5 and 11 on the ground that he is Under Trial Prisoner. Therefore, he could not give proper instructions to his counsel at the time of cross-examination of said prosecution witnesses. Therefore, his counsel could not elicit certain important facts from the above said witnesses during the cross-examination. Therefore, on the said grounds, the accused sought to recall the said prosecution witnesses.

4. The said application was opposed by the prosecution on the ground that the accused has not even explained the reasons much less satisfactory reasons for recalling the above said prosecution witnesses. The accused has filed Crl.M.P.No.129 of 2021 for recall of the P.Ws.1, 2, 4 and 5 and he has not pressed the said application on 01.10.2021, after lapse of twenty months on completion of evidence of 30 witnesses, the accused has filed the present application. The respondent is an habitual offender. He has not filed the above said application with proper reasons and therefore, with the said contentions, the prosecution sought to dismiss the said the said application filed by the accused.

5. The Court below vide order dated 12.01.2021 allowed the said application for recall of the above said prosecution witnesses on the ground that adducing evidence in support of defence is a valuable right. Denial of such right would amount to denial of fair trial. Therefore, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed.

6. Learned Public Prosecutor would submit that the Court below without considering the contentions of the prosecution allowed the said application and recalled the prosecution witnesses. The impugned order is contrary to the procedure laid down under Section 311 of Cr.P.C. and also violation of principles laid down by the Apex Court.

7. As stated supra, despite of service of notice, there is no representation on behalf of the accused.

8. Perusal of the charge sheet would reveal that prima facie, there are serious allegations against the accused. Previously he has involved in Cr.No.7 of 2010 of Madhapur Police Station for the offences under Section 302 of IPC, Cr.No.72 of 2013 of Peddemul Police Station for the offences under Sections 302, 379 and 201 of IPC and Cr.No.8 of 2015 of the very same Police Station for the offences under Sections 302 and 379 read with 34 of IPC. The petitioner is also accused in Cr.No.614 of 2011 of Sanath Nagar Police Station for the offence under Section 317 of IPC. Thus, the respondent is an habitual offender. In S.C.No.878 of 2021 and the offences alleged against the accused are under Sections 302, 376, 379 and 201 IPC.

9. Perusal of record would further reveal that the prosecution has examined P.Ws.1, 2, 4, 5 and 11 on 03.08.2021 and 04.08.2021 and 06.08.2021. The accused had filed Crl.M.P.No.129 of 2021 seeking to recall the prosecution witnesses and he has not pressed the same on 01.10.2021. Thereafter, the respondent had filed the present petition under Section 311 of Cr.P.C. vide Crl.M.P.No.163 of 2021 on 12.10.2021 seeking to recall the said prosecution witnesses on the ground that as he is an Under Trial Prisoner, he has not given proper