An application to recall a witness for cross-examination is interlocutory and not subject to revision under Section 397(2) of CrPC; valid reasons must be provided for such requests.

JUDGMENT :

Rakesh Kainthla, J.

1. The petitioner has filed the present petition against the order dated 30^th November 2014 passed by learned Sessions Judge (Special Judge) Kullu (learned Trial Court) in a case titled State of HP versus Govind Singh vide which an application filed by the accused under Section 311 of Code of Criminal Procedure, 1973 (CrPC) for recalling the victim for cross-examination was rejected. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.

2. Briefly stated, the facts giving rise to the present petition are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Section 376 of Indian Penal Code (IPC), Section 4 of Protection of Children from Sexual Offences (POCSO) Act and Section 3(1) (xi) of Scheduled Caste and Schedule Tribes (Prevention of Atrocities) (SC/ST) Act. Learned Trial Court framed the charges, recorded the statements of prosecution witnesses and fixed the matter for recording the statement of the accused under Section 313 of CrPC when the accused filed an application for recalling the victim for cross- examination. It was asserted that when the victim was cross-examined, the accused was lodged in jail. He could not apprise his counsel of the facts of the case. Recall of the witness for her cross-examination is necessary to put some relevant questions to her, which could not be put at the time of her cross- examination. She admitted that she used to talk to the accused, but she made a contrary statement in the Court. Material details regarding the statement could not be put to her. Counsel for the accused intended to put relevant questions to her. Hence, the application was filed to recall the witness for her cross-examination.

3. The application was opposed by filing a reply taking a preliminary objection regarding the lack of maintainability. The contents of the application were denied on merits. It was asserted that sufficient opportunity was granted to the accused to cross-examine the witness. It will not be in the interest of justice to recall the witness for her cross-examination after more than five years. No fruitful purpose would be served by recalling her. Hence, it was prayed that the application be dismissed.

4. Learned Trial Court held that the charges were framed on 25^th May 2018. The victim was examined on 29^th September 2018. She was thoroughly cross-examined by the defence. The matter was listed for recording the statement of the accused under Section 313 Cr.P.C. when the application was filed. More than five years had elapsed since the examination of the victim. The accused was brought to the Court at the time of examination of the witness, and the fact that he was in custody is irrelevant. Hence, the application was dismissed.

5. Being aggrieved from the order passed by learned Trial Court, the accused has filed the present application, asserting that the learned Trial Court had failed to appreciate that an adequate opportunity has to be given to the accused to defend himself. The victim made improvements in the statements given by her in the Court vis-a-vis her statements made under Sections 154 and 164 Cr.P.C. She admitted that she used to talk to the accused, however, she made a contrary statement in the Court. The accused could not apprise his counsel about the facts as he was in custody. The questions to be put to the victim are highly relevant and could not have been put earlier. Hence, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

6. I have heard Mr. Sudhir Bhatnagar, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy General for the respondent/State.

7. Mr. Sudhir Bhatnagar, learned counsel for the petitioner, submitted that the learned Trial Court erred in dismissing the application. The accused was in custody, and he could not b