IMPORTANT POINT
Power under Section 311 Cr.P.C. has to be exercised only when it is essential for just decision of case.

JUDGMENT

Subhash Vidyarthi J.—Heard Sri Amit Kumar Singh, the learned counsel for the applicant, Sri Anurag Verma, the learned A.G.A.-I appearing on behalf of the State and perused the records.

2. By means of the instant application the applicant has challenged the validity of an order dated 22.12.2023, passed by the learned Additional District and Sessions Judge/Special Judge, E.C. Act, Court No.4, Sultanpur in Sessions Trial No.467 of 2016, under Sections 147, 148, 149, 504, 506, 307, 302 I.P.C. Police Station Jamo, District Amethi, whereby the application filed by the applicant and another co-accused Ram Nath Singh under Section 311 Cr.P.C. for recall of PW-1 for being cross-examined by them has been rejected.

3. The application under Section 311 Cr.P.C. was filed on the ground that the accused Deependra Singh was summoned to face trial under Section 319 Cr.P.C. after PW-1 was reexamined and he was cross-examined on behalf of the newly added accused Deependra Singh. However, other accused person did not cross-examine the said witness after his recall. It was stated in the application that after a person is summoned as an accused under Section 319 Cr.P.C. the trial starts de novo and therefore all the accused persons have the right to cross-examine him. The learned trial court rejected the application without taking into consideration the fact that after PW-1 was examined by the prosecution the counsel for the applicant had cross-examined him and the record of cross examination runs into 17 pages. The said witness was cross-examined by other co-accused Ram Nath Singh also and that cross-examination runs into 7 pages. Deependra Singh was summoned to face trial under Section 319 Cr.P.C. after PW-1 had been examined. In these circumstances there is no ground for recalling the PW-1 for being cross-examined by the accused person, on whose behalf he has already been cross-examined extensively.

4. The learned trial court has also taken into consideration the fact that this court has issued a direction for expeditious disposal of the trial.

5. The learned counsel for the applicant has relied upon a decision of Hon’ble Supreme Court in the case of State represented by the Deputy Superintendent of Police Vs. Tr. N. Seenivasagan: (2021) 14 SCC 1 : 2021 SCC OnLine SC 212, wherein the Hon’ble Supreme Court has held as under:—

“12. In our view, having due regard to the nature and ambit of Section 311 of the CrPC, it was appropriate and proper that the applications filed by the prosecution ought to have been allowed. Section 311 provides that any court may, at any stage of any inquiry, trial or other proceedings under CrPC, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person “if his evidence appears to it to be essential to the just decision of the case”. The true test, therefore, is whether it appears to the Court that the evidence of such person who is sought to be recalled is essential to the just decision of the case.

13. In Manju Devi v. State of Rajasthan [(2019) 6 SCC 203], a two-Judge Bench of this Court noted that an application under Section 311 could not be rejected on the sole ground that the case had been pending for an inordinate amount of time (ten years there). Rather, it noted that: (SCC p. 209, para 13)

“13. ... the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness”.

Speaking for the Court, Dinesh Maheshwari J. expounded on the principles underlying Section 311 in the following terms:—

“10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essenti