IMPORTANT POINT
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.

JUDGMENT

By way of filing the instant misc. petition, a challenge has been led to the impugned orders dated 03.04.2024 passed by the Additional Sessions Judge, Chomu, District Jaipur in Sessions Case No.2/2024 by which the opportunity of cross-examination of the petitioner with the Prosecution Witnesses PW-1 Deepa and PW-2 Sunita has been closed and the order dated 10.05.2024 whereby the application submitted by the petitioner under Section 311 Cr.P.C. for recalling of the above two witnesses has been rejected.

2. Learned counsel for the petitioner submits that the petitioner is under trial for the offences under Sections 376(2)(n), 506 & 392 of IPC before the Court of Additional Sessions Judge, Chomu, wherein charges were framed against him for the above stated offences vide order dated 20.02.2024 and the prosecution witnesses were summoned on the next date, i.e., 03.04.2024. Counsel submits that on the fateful day, that was the first day for recording of the statements of the above stated witnesses, counsel for the petitioner was not keeping well as he was suffering from an ailment. Hence, an application was submitted in writing for granting opportunity to cross-examine the Prosecution Witnesses on some other day, but the prayer made by the counsel was not accepted and the application was rejected and on the very same day, the petitioner’s opportunity of cross-examination was closed by the trial Court vide impugned order dated 03.04.2024. Counsel submits that on the next day, an application under Section 311 Cr.P.C. was submitted by the petitioner for re- summoning the above two witnesses for the purpose of cross- examination, however, the said application was rejected by the trial Court vide impugned order dated 10.05.2024. Counsel submits that cross-examination is a statutory right of the accused and in order to conduct a just and fair trial, the petitioner cannot be deprived of the aforesaid opportunity, hence, interference of this Court is warranted.

3. Per contra, learned Public Prosecutor opposed the prayer.

4. Heard and considered the submissions made at the Bar and perused the material available on record.

5. Perusal of the record indicates that the charges were framed against the petitioner for the offences under Sections 376(2)(n), 506 & 392 of IPC by the trial Court vide order dated 20.02.2024 and thereafter, the case was posted for 03.04.2024 and the prosecution witnesses were summoned on the said day. On the fateful day, two witnesses, namely PW-1 Deepa and PW-2 Sunita, i.e., the prosecutrix and her mother appeared in the witness box, but the counsel appearing on behalf of the petitioner was not keeping well, hence, he submitted an application seeking time for the purpose of conducting cross-examination of the Prosecution Witnesses. However, the said application was rejected and on the very same day, the petitioner’s opportunity to cross-examine the above two witnesses was closed. Thereafter, an application under Section 311 Cr.P.C. was submitted by the petitioner for summoning the above two witnesses for the purpose of conducting their cross-examination. However, the said application was also rejected by the trial Court vide impugned order dated 10.05.2024.

6. In the considered opinion of this Court, there is no delay on the part of the petitioner with an intention to prolong the trial. On the very first day, when the prosecution witnesses appeared in the witness box, the counsel appearing on behalf of the petitioner sought time to conduct cross-examination on some other day for the reason of his suffering from ailment and being unwell. However, the trial Court closed the petitioner’s opportunity to cross-examine the prosecution witnesses without any justified reason. Thereafter, the application submitted by the petitioner for recalling the prosecution witnesses for the purpose of cross- examination was also rejected by the trial Court vide impugned order dated 10.05.2024, thereby closing the petitioner’s oppor