IMPORTANT POINT
The court upheld the trial court's decision to recall a witness under Section 311 of the CrPC, emphasizing the necessity of evidence for a just decision and the right to a fair trial.

JUDGMENT :

(N. Unni Krishnan Nair, J.)

Heard Mr. M. Sarma, learned counsel, appearing on behalf of the petitioner. Also heard Mr. B. S. Singh, learned senior counsel, assisted by Mr. B. Pushilal, learned counsel, appearing on behalf of Respondent No. 2.

2. The petitioner, herein, by way of instituting the present criminal petition, has presented a challenge to an order, dated 15.07.2023, by which the learned trial Court had allowed an application filed by the respondent No. 2, invoking the provisions of Section 311 of the Code of Criminal Procedure, 1973, for recall of PW-4 and to allow him to exhibit the original copy of an undertaking executed by the petitioner, herein.

3. The brief facts requisite for adjudication of the issues arising in the present proceeding, is noticed as under:

The Respondent No. 2 viz. Smti. Geeta Singh, had lodged a complaint before the Court of the Judicial Magistrate, North Lakhimpur, for 20.11.2008, alleging that the petitioner had formed a committee consisting of 20 members, including the Respondent No. 2, in the pretext of giving financial assistance and the petitioner had told that there would be a game of betting amongst the members who would contribute Rs. 5,000/- each and it was told by the petitioner that the members would get commission in the game. However, the petitioner misappropriated the money involved and also misappropriated the commission of the Respondent No. 2 amounting to Rs. 31,475/-. The said complaint so filed, had also as one of its enclosures, an undertaking, signed by the petitioner, herein. The said complaint was forwarded to the North Lakhimpur Police Station for investigation. On receipt of the said complaint, the police treating the same as First Information Report(FIR) registered North Lakhimpur P.S. Case No. 766/2008 under Section 420 of the Indian Penal Code. On completion of the investigation; the police laid the charge sheet being charge sheet No. 92/2009, dated 12.03.2009, against the petitioner under Section 420 of the Indian Penal Code.

The said case is presently pending disposal before the Court of learned Chief Judicial Magistrate, North Lakhimpur, in G.R. Case No. 1507/2008 under Section 420 of the Indian Penal Code. It was projected that the charge was framed under Section 420 of the Indian Penal Code and the trial commenced.

Altogether, 6(six) witnesses including the PW-4 came to be examined and thereafter, cross-examined and the statement of the petitioner under Section 313 of the Code of Criminal Procedure, 1973, was also recorded. The matter was, thereafter, fixed for arguments on 27.05.2013.

On 27.05.2013, the Respondent No. 2, as informant, had filed an application through the Addl. Public Prosecutor, invoking the provisions of Section 311 of the Code of Criminal Procedure, 1973, before the learned trial Court praying for recalling of PW-4 for re-examination and exhibiting an agreement which was contended to have been admittedly not produced, either, before the police, or, before the learned trial Court. The said application was opposed by the petitioner, herein.

The learned trial Court, upon hearing the parties to the proceeding, vide order, dated 15.07.2013, by recording a conclusion that re-examination of PW-4 was essential to a just decision in the case, was pleased to allow the prayer of the learned Addl. P.P., Assam. Accordingly, the PW-4 was directed to be recalled and 31.07.2013, was fixed as the date for re-examination of PW-4.

4. Being aggrieved, the petitioner has filed the present proceeding.

5. It is to be noted that while issuing notice in the matter vide order, dated 28.02.2013; this Court had stayed the further proceeding in G.R. Case No. 1507/2008 under Section 420 of the Indian Penal Code, pending before the Court of learned Chief Judicial Magistrate, North Lakhimpur.

6. Mr. Sarma, learned counsel for the petitioner, by reiterating the facts as noticed hereinabove; has submitted that the existence of the said undertaking was not highlighted by