The court upheld that witness testimonies should not be casually recalled post-examination without substantial justification, emphasizing the importance of maintaining the integrity of judicial proceedings.

ORDER :

BALJINDER SINGH SANDHU, J.

S.B. Criminal Misc(Pet.) No. 4426/2024

1.The instant criminal miscellaneous petition under Section 528 of the BNSS , 2023, has been preferred against the order dated 01.07.2024 passed by the Children's Court, Pratapgarh, whereby application filed under Section 311 Cr.P.C. for recalling PW-3 has been allowed.

2. The facts of the present case are that the offence alleged against the accused is under Section 302 of IPC . One of the accused is Prince @ Pratham, who is a minor and whose trial is pending before the Children's Court, Pratapgarh being Sessions Case No.69/2022. The other accused is Jitu @ Kana, who is a major and his trial is going on before the Sessions Court, Pratapgarh, in Session Case No.20/2023.

3. Since the learned Sessions Judge is also the Presiding Officer of the Children Court, the trials of both the cases are proceeding simultaneously. In the case pending before the Children Court, Pratapgarh, witness PW-3 Lokendra Singh was examined on 27.04.2023. Thereafter, an application under Section 311 Cr.P.C. came to be filed on 08.02.2024 stating that during the cross- examination, certain major questions had been left out, therefore the witness be recalled for further cross-examination. The said application was, however, found to be devoid of merits, and the court, after considering the fact that a detailed cross-examination had already been conducted by the learned counsel for the accused, found no ground to recall the witness. Accordingly, the application was rejected vide order dated 21.02.2024.

4. Thereafter, another application under Section 311 Cr.P.C. was filed on 15.03.2024 for recalling the witness Lokendra Singh for recording his evidence, alleging that the accused had received a letter from Lokendra Singh dated 06.03.2024, wherein he stated that he had not witnessed the incident and that after giving statements in court, he was feeling guilty. He further expressed remorse and sought forgiveness for the same. The learned trial court, after hearing the matter, allowed the same vide order dated 01.07.2024. As per the order dated 01.07.2024, Lokendra Singh was present before the learned trial court and admitted writing such a letter and stated that he had given statements in the court on being asked by the brother of the deceased. The learned trial court, considering the fact that the letter was written after the cross-examination and treating it as a change in circumstances, held that he needs to be recalled. Based upon these reasons, the application was allowed.

5. Learned counsel for the petitioner, while laying challenge to the order, stated that earlier an application was already rejected vide order dated 21.02.2024 for recalling PW-3, however, by creating a subsequent and artificial ground, another application was filed after a lapse of about one year from recording of the statements. The counsel has also submitted the letter dated 06.03.2024, which is alleged to be written by Lokendra Singh, for perusal of the Court. In view of the same, he submits that even the letter, on the face of it, does not state that the witness was ever threatened or had deposed in the court under any pressure. He submits that it is not a case of threat or coercion, and no such statements can be recorded upon the mere volition of the witness once statements on oath have been recorded and he has been thoroughly cross-examined. Thus, he submits that the impugned order may be quashed and set aside as there is no ground for recalling the witness while exercising powers under Section 311 Cr.P.C.

6. Learned counsel has relied upon the judgment of the Hon’ble