JUDGMENT

Manoj Kumar Ohri, J. - The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioner seeking setting aside of the orders dated 01.09.2021 and 21.09.2021 passed by the learned aSJ, West District, Tis Hazari Courts, Delhi, whereby opportunity of the petitioner to cross-examine the witness Vinod Kumar Chauhan (PW-1) was closed and the application filed under Section 311 Cr.P.C. seeking recall of the said witness dismissed.

2. Learned counsel for the petitioner submits that initially, both the father and the mother of the deceased were cited as prosecution witnesses, i.e., PW-1 and PW-2 respectively. To safeguard the interest of the petitioner so that the prosecution witnesses may not improve upon their case, a request was made to the Trial Court for an opportunity to cross-examine both the witnesses on one day. However, the petitioner's request was declined by the Trial Court vide the impugned orders and on 01.09.2021, only Vinod Kumar Chauhan (PW-1) was present and examined, whereas the mother of the deceased (PW-2) was not summoned on that day.

Learned counsel also submits that although an application under Section 311 Cr.P.C. seeking an opportunity to recall and cross-examine the witness Vinod Kumar Chauhan was filed, the prosecution subsequently dropped PW-2 from the array of witnesses. He prays that under the circumstances, one opportunity may be granted to the petitioner to cross-examine Vinod Kumar Chauhan on one single day, on which day he will also conduct the cross-examination of the aforesaid witness.

3. The scope of Section 311 Cr.P.C. has been considered by the Supreme Court in P. Sanjeeva Rao v. State of andhra Pradesh reported as (2012) 7 SCC 56, where the Court held as under:-

"20. Grant of fairest opportunity to the accused to prove his innocence is the object of every fair trial, observed this Court in Hoffman andreas v. Inspector of Customs.

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23. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. .. we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. a possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself."

4. In Natasha Singh v. Central Bureau of Investigation (State) reported as (2013) 5 SCC 741, while referring to its earlier decisions in Mir Mohd. Omar and Others v. State of West Bengal reported as (1989) 4 SCC 436, Mohanlal Shamji Soni v. Union of India and another reported as 1991 Supp (1) SCC 271, Rajeswar Prasad Misra v. State of West Bengal and another reported as 1966 (1) SCR 178, Rajendra Prasad v. Narcotic Cell through its Officer in Charge, Delhi reported as (1999) 6 SCC 110, P. Sanjeeva Rao (Supra) and T. Nagappa v. Y.R. Muralidhar reported as (2008) 5 SCC 633, the Supreme Court has held as under:-

"8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any st