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2020 Supreme(Raj) 177
IN THE HIGH COURT OF RAJASTHAN
Vijay Bishnoi, J.
Siya Ram - Appellant
Versus
State Of Rajasthan - Respondent
Criminal Miscellaneous Petition No. 5347 of 2019
Decided On : 03-01-2020
S.D. Purohit, Advocate, Aneesh Bhurat, Advocate
The power to recall a witness under Section 311 CrPC must be exercised judiciously and not capriciously or arbitrarily. An application under Section 311 CrPC cannot be allowed to fill up a lacuna in the case of the prosecution or defense or to the disadvantage of the accused.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 311 - RECALLING OF WITNESS - SUMMARY: The court dismissed a petition filed under Section 482 CrPC challenging the trial court's order rejecting the petitioner's application to recall the Investigating Officer (PW32) for further cross-examination. The court held that the petitioner's claim to recall the witness to fill a lacuna in his defense was not tenable.
Fact of the Case:
The petitioner filed a petition under Section 482 CrPC challenging the trial court's order rejecting his application to recall the Investigating Officer (PW32) for further cross-examination. The petitioner claimed that his advocate had failed to cross-examine the Investigating Officer regarding the recovery of a button from the deceased's shirt.
Finding of the Court:
The court found that the petitioner's advocate had ample opportunity to cross-examine the Investigating Officer during the trial and that the petitioner's claim to recall the witness to fill a lacuna in his defense was not tenable.
Issues: Whether the trial court erred in rejecting the petitioner's application to recall the Investigating Officer (PW32) for further cross-examination.
Ratio Decidendi: The court held that the power to recall a witness under Section 311 CrPC must be exercised judiciously and not capriciously or arbitrarily. The court further held that an application under Section 311 CrPC cannot be allowed to fill up a lacuna in the case of the prosecution or defense or to the disadvantage of the accused.
Final Decision: The court dismissed the petition filed under Section 482 CrPC.
JUDGMENT
Vijay Bishnoi, J. - This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 20.08.2019 passed by the Additional Sessions Judge No.2, Nagaur (hereinafter to be referred as the 'trial court) in Sessions Case No.73/2015 (128/2014)(43/2012), whereby the application filed on behalf of the petitioner under Section 311 CrP.C. with a prayer for recalling the Investigating Officer PW32-Babu Lal has been rejected.
2. The trial court is of the opinion that counsel for the petitioner was granted full opportunity to cross-examine PW-32 Babu Lal and he was cross-examined at length. It is also observed that reasons given by the petitioner to justify his prayer for recalling PW-32 Babu Lal is not tenable as the petitioner only wants to fill up lacuna in the case of defence. The trial court while exercising its discretion has given a finding that recalling of PW-32 Babu Lal is not desirable for arriving at a just decision of the case and as such prayer of the petitioner of recalling PW-32 Babu Lal cannot be accepted.
3. Learned counsel for the petitioner has submitted that the petitioner has set out a specific case that on what points he wants to cross-examine the prosecution witness PW-32 Babu Lal. It is submitted that even after due diligence by the advocate, the said question could not be asked in the cross-examination regarding recovery of button of the shirt of the deceased and only on that point the petitioner wants to cross-examine the said prosecution witness. It is submitted that recalling of PW-32 Babu Lal will not prejudice the prosecution in any manner as the prosecution can also confront or cross-examine the said witness. Learned counsel for the petitioner has placed reliance on the decisions of the Hon'ble Supreme Court in Mannan SK & Ors. vs. State of West Bengal & Anr, (2014) CrLR 808 SC and Natasha Singh vs. CBI (State), (2013) CrLR 582 SC
4. Learned Public Prosecutor has opposed the misc. petition.
5. Heard learned counsel for the petitioner and perused the impugned order.
6. It is not in dispute that evidence of the prosecution witness PW-32 Babu Lal was started on 07.08.2015 and his crossexamination was started on 03.09.2015 and continued up to 02.09.2016 and during that period all the advocates of the accused persons had cross-examined PW-32 Babu Lal in detail including counsel representing the petitioner. The contention of the petitioner to the effect that his advocate had failed to crossexamine the Investigating Officer in respect of recovery of button of the shirt, at the instance of the petitioner, is not tenable as it will amount to fill up lacuna in his defence.
7. It is true that as per the law laid down by the Hon'ble Supreme Court in Mannan SK & Ors. vs. State of West Bengal & Anr and Natasha Singh vs. CBI (State), there is no time limit when the application for recalling or summoning any witness has prescribed under the law but at the same time, it is well settled that the prosecution or defence cannot be allowed to fill up the lacuna in their case by way of recalling any witness. The facts of the case of Mannan (supra) are altogether different as in that case, prosecution had failed to cross-examine the Investigating Officer in relation to a statement given to him by one of the witnesses during investigation. Here in the present case, the petitioner is claiming to recall the prosecution witness because some of the questions were not put to him during his crossexamination.
8. The Hon'ble Supreme Court in the case of Natasha Singh (supra) has observed as under in Para No.14:-
''The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may le
