Back
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
SUDESH BANSAL, J.
Ramkaran Fagediya and Ors. - Petitioners
Versus
State of Rajasthan - Respondent
S.B. Criminal Miscellaneous (Petition) No. 7365 of 2022.
Decided on : 07-02-2024
ORDER :
Sudesh Bansal, J. - Instant criminal Misc. petition under Section 482 Cr.P.C. has been filed by accused petitioners feeling aggrieved by the order dated 01.08.2022 passed in Sessions Case No.1/2020 (State v. Ramkaran & Ors.) by the Court of Additional Sessions Judge No.1, Jhunjhunu allowing the application of prosecution filed under Section 311 Cr.P.C. to recall prosecution witnesses PW-4 Dilip Kumar and PW-5 Azad Khan and further dismissing petitioners' application dated 08.09.2021 to separate the trial of their Sessions Case No.1/2020 from the trial of Sessions Case No.33/2021 (State v. Kishan Fagediya).
2. Relevant facts of the case in brief are that on the complaint lodged by non-petitioner No.2-complainant Buti Ram in respect of murder of his son Manoj Kumar, an FIR No.343/2019 was registered on 01.08.2019 at Police Station Kotwali, Jhunjhunu for offence under Section 302 IPC.
3. During course of investigation, both petitioners were arrested and after completing the investigation against them, charge-sheet No.261/2019 dated 20.10.2019 was filed against petitioners for offence under Sections 323, 365, 302, 201 and 34 IPC. Sessions Case No.1/2020 has been registered and charges for such offences have been framed against both petitioners. The prosecution has examined as many as eight witnesses, PW-4 Dilip Kumar was examined on 10.02.2020 and PW-5 Azad Khan was examined on 02.03.2020, both turned hostile against petitioners.
3.1 Thereafter at this stage, the investigation which was kept pending against another accused Kishan Fagedia under Section 173(8) Cr.P.C was completed and a supplementary charge-sheet No.261-A for offence under Sections 323, 365, 302, 201 and 34 IPC came to be filed against Kishan Fagediya, whereupon Sessions Case No.33/2021 (State v. Kishan Fagediya) has been registered.
3.2 Since Sessions Case No.33/2021 also arises in FIR No.343/2019, this case was directed to be tagged with Sessions Case No.1/2020 vide order dated 29.07.2021. It is to be noted that the order dated 29.07.2021 is not under challenge before this Court.
3.3 Petitioners moved a separate application dated 08.09.2021 praying to separate the trial of their Sessions Case No.1/2020 with the trial of Sessions Case No.33/2021, fundamentally on the ground that in Sessions Case No.1/2020, eight prosecution witnesses PW-1 to PW-8 have been examined qua both petitioners, therefore, these witnesses are not required to be examined against them, though would be recalled in Sessions Case No.33/2021 for evidence against accused Kishan Fagediya in support of supplementary charge-sheet No.261-A.
3.4 On the same date i.e. 08.09.2021, prosecution also moved application under Section 311 Cr.P.C., seeking to recall prosecution witnesses PW-4 Dilip Kumar and PW-5 Azad Khan in Sessions Case No.1/2020 for further cross-examination by prosecution against petitioners. The purpose of recalling PW-4 for further cross-examine by the prosecution is, on the CD wherein his statements under Section 161 Cr.P.C. were recorded by the Police and purpose of recalling of the prosecution PW-5 Azad Khan is to Exhibit the Pen Drive wherein his CCTV Footage was recorded by the Police during the investigation.
3.5 The application under Section 311 Cr.P.C. filed by the prosecution was opposed by petitioners and reply was also filed.
3.6 Learned trial Court vide order impugned herein, granted the application of prosecution filed under Section 311 Cr.P.C. and allowed to recall PW-4 and PW-5 for further evidence against petitioners and simultaneously, dismissed the application filed by petitioners to separate the criminal trial of Sessions Case No.33/2021 with Sessions Case of petitioners No.1/2020. Hence, the instant petition by petitioners.
4. Learned Senior Counsel appearing on behalf of petitioners vehemently argued that PW-4 Dilip Kumar and PW-5 Azad Khan have been declared hostile by the prosecution and thereafter, both witnesses were allowed to cross-examin by the prosecution. PW-4
The court must exercise caution in recalling witnesses under Section 311 Cr.P.C. to avoid unfair advantage to the prosecution and ensure just decision.
The power under Section 311 CrPC should be exercised for the just decision of the case, and the evidence sought to be adduced must be essential, requiring judicial discretion.
The court confirmed the authority to recall witnesses under Section 311 Cr.P.C. is intended to ensure a just trial, balancing the need for complete evidence against the rights of the accused.
Section 311 of the Code mandates courts to allow recalling witnesses if essential for achieving a just decision, reflecting the right to a fair trial.
Section 311 of the Cr.P.C. allows courts to recall witnesses essential for a just decision, emphasizing that oversights in prosecution do not constitute irreparable lacunae. Judicial discretion must ....
The rejection of a request to recall witnesses under Section 311 CrPC is valid when it is deemed an attempt to prolong proceedings without just cause, emphasizing the need for fair trial principles.
The main legal point established in the judgment is the discretionary and mandatory aspects of S.311 of Cr.P.C., emphasizing the need for judicious exercise of power and the requirement for the evide....
The power under Section 311, Cr.P.C. should be exercised with restraint and caution, especially at the final stage of the trial, and delay in filing the application may impact the court's decision.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
