IMPORTANT POINT
The court emphasized that the discretion under Section 311 Cr.P.C. must be exercised judiciously, ensuring that the recall of witnesses is essential for a just decision.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 13.02.2024 passed by the learned Additional Sessions Judge 1st, Rajmahal in Sessions Trial No. 248 of 2013 whereby and where under the petition under Section 311 Cr.P.C. filed by the informant of the case has been allowed by the learned trial court.

3. It is submitted by the learned counsel for the petitioner that in the said Sessions Trial No. 248 of 2013, charge was framed on 14.07.2014 and in between 12.07.2018 to 05.01.2022, all the witnesses have been examined including Om Bihani Bibi and Allauddin Ansari and they have neither been declared hostile by the prosecution nor the prosecution cross-examined them. On 29.11.2022, the case of the prosecution was closed. On 09.12.2022, the statement of the petitioner who is the accused person of the case was recorded under Section 313 Cr.P.C. The evidence of the defence was closed on 06.04.2023. The case was fixed for judgment on 12.01.2024. On 08.01.2024, the informant filed an application under Section 311 Cr.P.C. with a prayer for examination of the three witnesses including PW-1 and PW-3. On 13.02.2024, the learned Additional Sessions Judge-I, Rajmahal allowed the said prayer subject to deposit of Rs.2,000/- before 21.02.2024 to be deposited in the Nazarat and directed the prosecution to examine all its witnesses within three weeks.

4. It is submitted by the learned counsel for the petitioner that the said order dated 13.02.2024 is a vague, cryptic, unreasoned and non-speaking order and the said order even do not disclose the names of the witnesses or the purpose of their examination and his witnesses the belated the stage, when the trial is at the fag end being posted for judgment. It is next submitted that the said order indicates, as if the witnesses examined are fresh witnesses and there is no whisper that two out of three witnesses sought to be examined by the informant have already been examined in this case and after their cross-examination, they have been discharged. Thus, it is submitted, that the said order has been passed without application of mind by the learned court below.

5. Relying upon the Judgment of Hon’ble Supreme Court of India, in the case of State (NCT of Delhi) Vs. Shiv Kumar Yadav and Another, (2016) 2 SCC 402 Para-27 of which reads as under:

“27. It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power under Section 311 Cr.P.C. is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a m