The power under Section 311 of the Code of Criminal Procedure should be invoked judiciously and with extreme care and caution, and the delay in filing the application for recalling witnesses is an important factor to be considered.

JUDGMENT

Madhumati Mitra, J. - This criminal revision is directed against the order dated 05.09.2019 passed by the Learned Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas in Session Trial No.10 of 2018 arising out of Baguiati Police Station, Case No.342 of 2017 dated 05.05.2017, under Sections 370/370A(2)/506(2)/370(3)/120B of the Indian Penal Code.

2. By the impugned order dated 05.09.2019, the Learned Trial Judge rejected the prayer of the present petitioner under Section 311 of the Code of Criminal Procedure for recalling prosecution witnesses i.e.P.W.Nos.1 to 5.

3. A charge-sheet bearing no.664 of 2017 dated 31.07.2017, under Sections 370/370A(2)/506(2)/370(3)/120B of the Indian Penal Code was submitted against the present petitioner and four others. Charges have been framed under the above mentioned Sections against the present petitioner and others.

4. From the materials placed on record as well as from the submissions made by Learned Counsel appearing for the parties it transpires that most of the prosecution witnesses have been examined and cross-examined in full.

5. During trial on 17.08.2019 and 25.07.2019, the present petitioner who is facing trial filed four separate applications under Section 311 of the Code of Criminal Procedure seeking permission for further cross-examination of prosecution witnesses no.1,2,3,4 and 5 on recall.

6. The Learned Trial Judge by the impugned order dated 05.09.2019, turned down the prayer of the petitioner for further cross-examination of prosecution witnesses no.1,2,3,4 & 5 on recall after, observing that the petitioner had prayed for examination of five prosecution witnesses on recall after 14 months from the date of examination of P.W.Nos.1 to 3 and had failed to assign believable or cogent reasons for not asking the questions which were mentioned in the said applications. In the said impugned order, Learned Trial Judge also observed that there were no reasons as to why those questions were not put to the witnesses when they were cross-examined extensively by the Learned Lawyers for each of the accused persons.

7. Learned Senior Advocate for the petitioner has assailed the impugned order of rejection of the prayer of the petitioner under Section 311 of the Code of Criminal Procedure on the ground that Learned Trial Judge while passing the impugned order has completely overlooked the provisions contained in Section 311 of the Code of Criminal Procedure. According to his contention, no party in a trial can be foreclosed from correcting errors and if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistake to be rectified.

8. In support of his contention, Learned Counsel for the petitioner has submitted that the petitioner sought for permission before the Learned Trial Court to cross-examine the prosecution witnesses no.1 to 5 on recall, on the basis of the guidelines issued by this High Court on 22.12.2015 in Writ Petition No.27394(W) of 2015 and the cross-examination of those witnesses is necessary to disprove the allegations levelled against the present petitioner. He has further contended that it was the specific defence case that de facto complainant i.e. prosecution witness no.1 was never an employee dancer of the bars in question and as such she is required to be cross-examined on the basis of the guidelines issued by this High Court in connection with that writ petition.

9. It has been specifically contended by the Learned Counsel appearing for the petitioner that the petitioner could not cross-examine the prosecution witnesses on the basis of the order passed in the writ petition No.2739 (W) of 2015 as everything including those orders was seized by the police after FIR was lodged by the de facto complainant against the petitioner and others. It has been contended by the Learned Counsel for the petitioner that the petitioner for his proper defence should