The power to recall a witness under Section 311 Cr.P.C. should be exercised judiciously to prevent failure of justice and not arbitrarily.

Banwari Lal Sharma, J.

The present criminal misc. petition under Section 482 Cr.P.C. is preferred by the petitioners-accused against the impugned order dated 10.07.2015 passed by learned Additional Sessions Judge (Women Atrocity Cases), Bharatpur in Sessions Case No. 13/2015 (State of Rajasthan v. Udaiveer Singh and Ors.) whereby learned Court below dismissed the application submitted by petitioners-accused under Section 311 Cr.P.C. for summoning a witness Ramveer Singh and recalling another witness PW-1 prosecutrix.

2. The brief facts of the case are that petitioners-accused are facing trial for offence under Section 376, 498A, 406 and 323 I.P.C. before learned Additional Sessions Judge (Women Atrocity Cases), Bharatpur. The trial is at prosecution evidence stage wherein after examination of prosecutrix PW-1 petitioners moved an application under Section 311 Cr.P.C. for summoning one witness Ramveer Singh and recalling PW-1 prosecutrix which was rejected by the learned Trial Court vide impugned order dated 10.07.2015. Against the said order this misc. petition is preferred by the petitioners-accused.

3. Learned counsel for the petitioners Mr. Rajeev Surana submits that Ranveer Singh is vital witness who is well aware about the facts of the case and same has not been introduced by the prosecution who is non else but elder brother of father-in-law (Tayar Sasur) of prosecutrix same should have been summoned. He further submits that important questions regarding burn injury, injuries on private parts of prosecutrix and conduct of prosecutrix were not asked by the counsel of petitioners to PW-1 prosecutrix. Since petitioners are in custody and the counsel failed to ask important questions to prosecutrix. Therefore, in interest of justice and for fair trial, it is necessary to recall PW-1 prosecutrix for cross examination but learned Court below without taking into consideration the arguments of petitioners, wrongly rejected the application of the petitioners. Therefore, this criminal misc. petition may be allowed and impugned order may be quashed and set aside and application of the petitioners may be allowed.

4. Learned counsel for the petitioner relied upon judgment rendered in the case of P. Sanjeeva Rao v. State of Andhra Pradesh reported in (2012) 7 SCC 56.

5. Learned PP Mr. R.R. Baisla supported the impugned order and submitted that, important questions were not asked during cross examination, is no ground for recalling the witness. He submits that so far as Ranveer Singh is concerned, he is not cited by prosecution, therefore, at the stage of defence evidence, if accused want to summon him, they can submit application before the Trial Court at appropriate stage. Presently the matter is at the stage of prosecution evidence, and at this stage petitioners-accused cannot force prosecution to summon Ranveer Singh. He submitted that the criminal misc. petition may be dismissed.

6. I have considered the submissions made at Bar.

7. So far as Ranveer Singh is concerned, since it is not cited by prosecution as prosecution witness. Therefore, at the stage of prosecution witness, accused cannot force prosecution to summon witness, who is not cited as prosecution witness. If petitioners-accused wish to examine the said witness at the stage of defence evidence, they can do so.

8. As far as recalling of PW-1 prosecutrix is concerned. From the perusal of statement of prosecutrix, it reveals that her statement has already been completed. The examination in chief is recorded in two and a half pages and the cross examination is recorded in four pages. Therefore, it cannot be said that proper opportunity for cross examination was not given to the petitioners.

9. In the matter of P. Sanjeeva Rao v. State of A.P. (supra) two prosecution witnesses were not cross-examined by the defence counsel because counsel for accused has indeed intended to cross-examine them after Trap Laying Officer had been examined. In such situation Hon'ble Supreme Court obse