The discretionary nature of the powers under Section 311, CrPC and the requirement for ample opportunity for cross-examination before recalling a witness.

Dr. Vineet Kothari, J.-This misc. petition filed under Section 482, CrPC is directed against order of trial Court dated 012.2005 passed by the Additional Sessions Judge (Fast Track), Sikar in Sessions Case No. 75/2005 whereby he rejected the application filed by the accused petitioner under Section 311, CrPC for recalling the prosecutrix in the trial which is pending against the accused petitioner for offence under Sections 366, 376 and 363, IPC.

2. Mr. Gupta, the learned Counsel for the petitioner submits that there are variations in the statements of prosecutrix recorded by the police under Section 161, CrPC, and also under Section 164, CrPC recorded before the learned Magistrate and the statement recorded by the trial Court. He has shown me the copies of the said statements and submitted that since the cross-examinations of the prosecutrix could not be fully and properly done when the statements were recorded by the trial Court on 07.06.2005, the learned trial Court ought to have allowed the application filed by the petitioner under Section 311 of the CrPC by recalling the prosecutrix for re-cross-examination. He further submits that the learned trial Court has erred in observing that the powers under Section 311, CrPC are not meant to fill up the lacunae. He further submits that for the prosecution the lacunae cannot of -course be filled up by use of powers under Section 311, CrPC, whereas for defence, this legal principle does not apply and, therefore, the application filed by the petitioner under Section 311, CrPC, was justified.

3. Learned Counsel for the petitioner placed reliance upon the two decisions of this Court, one in the case of Ram Gopal vs. State of Rajasthan, 1999 (1) RCC 457, wherein this Court allowed the application filed under Section 311, CrPC for recalling PW. 18 for proving the documents executed by her and exhibited before the Court concerned in a trial for offence under Sections, 302, 457 and 201, IPC. In that case, the prosecution witnesses were sought to be summoned for re-examination to prove the registered sale-deed as well as the compromise duly arrived at between the parties which could not despite due diligence, be proved in evidence unless the said witness Smt. Prem was confronted with the said relevant documents executed by her in favour of the person concerned and which was material for the just decision of the case. This case with great respects, is entirely based on different set of facts and circumstances and is not applicable to the facts and circumstances of the instant case which relates to Section 376, IPC. Another Judgment cited by Mr. Gupta is Ammi Lal @ Immi Chand & Ors. vs. State of Rajasthan, 2002 (3) RCC 1258, wherein this Court while reiterating the principle that the powers under Section 311, CrPC, are not meant to be used for the purpose of enabling the prosecution to fill up any lacunae in their evidence, held that the powers are entirely discretionary under Section 311, CrPC, and, therefore, the Court upheld the rejection of the application under Section 311, CrPC refusing to recall PW. 4 the Doctor after closing the evidence of the witnesses of both the sides in a trial of a case for offences under Sections 307, 326, 324, 323 and 34 of the IPC.

4. Learned Counsel for the complainant however, opposes these submissions and submits that the learned Counsel for the petitioner was aware of both the statements recorded under Sections 161 and 164 of the CrPC of the prosecutrix and had not only the full opportunity of cross-examination of the prosecutrix in the statements recorded by the trial Court on 07.06.2005 but in fact such detailed cross-examination which took place which itself runs into 5 to 6 pages of the statement of the prosecutrix. Therefore, according to the learned Counsel filing an application under Section 311, CrPC filed by the petitioner was not only unsustainable and was done merely with a view to prolong the trial but it also amounts to abuse of the