The essential test of 'just decision of the case' and the discretionary nature of Section 311 Cr.P.C, as interpreted by the Supreme Court, emphasizing the duty to examine material witnesses necessary for doing justice between the State and the subject, and the obligation to summon and examine all persons whose evidence appears to be essential to the just decision of the case.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

1. This is a petition under Section 482 Code of Criminal Procedure, 1973 (For Short `Cr.P.C') seeking setting aside of the dated 16.12.2022 passed by the learned ACMM-2 Cum ACJ, RACC, New Delhi in case CBI No. 309/2019 whereby the learned Trial Court has dismissed the application under Section 311 Cr.P.C, r/w Section 138 Indian Evidence Act, 1872 filed by the petitioner seeking recall of PW9 Hansraj and PW23 S. L. Mukhi who is the expert from the CFSL.

2. Learned counsel appearing for the petitioner submits that though both the witnesses were examined and cross examined by the petitioner, however, upon closer scrutiny of such cross examination, learned counsel appearing for the petitioner realised that certain very material and core questions crucial to tilt the case in favour of the petitioner were overlooked and the same would be required for just decision of the case.

3. Learned counsel appearing for the petitioner submits that even under the provisions of Section 311 Cr.P.C., the requirement for re examination is primarily in respect of the just decision of the case and the delay in such recall or even the application for recall itself would not disentitle any person from seeking such relief.

4. Mr. Khan also relies upon the judgment of Godrej Pacific Tech. Ltd. Vs. Computer Joint India Pvt. Ltd in Crl. Appl. No. 1181/2008 delivered on 30.07.2008 and specifically point out to para 7 to 10 to submit that the Supreme Court has categorically elucidated the law with respect to Section 311 Cr.P.C. as to the right accrued to the applicant thereunder.

5. Per contra, learned SPP for the CBI reiterates and relies upon the rationale contained in the impugned order passed by the learned Trial Court. Learned counsel submits that once having examined both the witnesses, it is not permissible to take advantage of the provisions of Section 311 Cr.P.C. to recall such witnesses and it appears to be dilatory tactic so that the matter can be further delayed.

6. Learned counsel submits that the petition should be dismissed as also the application under Section 311 Cr.P.C.

7. In rebuttal, Mr. Khan submits that the learned Trial Court overlooked the ratio laid down by the Supreme Court in Godrej Pacific Tech. Ltd. (Supra) and therefore, the same ought to be set aside and an opportunity as sought be granted.

8. This Court has considered the submission of Mr. Khan as well as Mr. Kumar and perused the impugned order and the judgment of the Supreme Court.

9. It would be apposite to extract para 7 to 10 of the judgment of the Supreme Court in Godrej Pacific Tech. Ltd. (Supra) which are as under:

"7. The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court t