The prosecution has the right to ask the court to recall a witness for further examination, including treating the witness as hostile, at any point of time, provided that the court is satisfied that such recalling and re-examination of the witness is essential to the just disposal and adjudication of the case.

Heard. The legality and propriety of the impugned order passed by the learned Sessions Judge in Crl.M.P. No. 7665 of 1996 in SC 107 of 1995 on the file of Vth Additional Sessions Court, Madras on 3-1-1996, following the petition filed under S. 311 of the Code of Criminal Procedure by the prosecution, is challenged in this revision, on the ground that the prosecution is not entitled to ask for recalling the witness examined already for the purpose of treating the witness said as hostile after the examination of other prosecution witnesses.

2. The Inspector of Police/respondent herein filed the final report against the accused/petitioner for the offence under S. 302, IPC alleging the crime of the murder of one Venkatesan on 13-5-1994 night. The brother's daughter of the deceased Venkatesan, by name, Dhanalakshmi was examined as P.W. 1 in Chief as well as cross. After completing her examination, other witnesses were also admittedly examination, other witnesses were also admittedly examined by the prosecution. For the reasons that she had stated something in the cross-examination which was contrary to what was stated by her during the course of her chief examination which was contrary to what was stated by her during the course of her chief examination, and which was noticed by the prosecution subsequently, a petition under S. 311 of the Code of Criminal procedure was fied with a request to recall P.W. 1 for the purpose of treating her hostile. The petition was objected to by and on behalf of the accused/revision petitioner herein. After hearing both the parties and going through the case-laws cited by and on behalf of the respective parties, learned trial judge has allowed the said petition and permitted the prosecution to recall P.W. 1. Aggrieved at this, this revision has been filed.

3. I have heard the Bar for the respective parties, for and against the impugned order. To appreciate the points involved in this case, it has become necessary for me to advert S. 311 of the code of Criminal Procedure which runs like this :-

"Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

4. The charge involved in the instant case seems to be one under S. 302, IPC against the revision petitioner. The person who is sought to be recalled was examined as P.W. 1 already in full. The ground upon which the recall was prayed for is that the said witness has spoken to the fact which is totally destructive to what she has told before the court during the course of chief examination and contrary to her statement given before the learned Magistrate and recorded under S. 164 of the Code of Criminal Procedure. This inconsistant stand taken by P.W. 1, the only eye-witness seems to be an edgy for the prosecution to file the impugned petition and get the order. Learned trial Judge after seeing the grounds as well as the resistence made by and on behalf of the petitioner and having followed the legal ratio held by the higher courts, has concluded that the prosecution has got a right to ask the Court to recall the witness for the purpose of examining further which is inclusive of treating the witness hostile, and accordingly, allowed the petition.

5. The grievance exposed by and on behalf of the revision petitioner is that the right conferred upon the prosecution cannot at all be allowed to be exercised at any point of time and more particularly, when the prosecution witnesses were examined, then asking for recalling a particular witness for the purpose of treating the witness as hostile would cause prejudice to the accused petitioner. In this context, the question that rem