The power to recall a witness for cross-examination under Section 311 Cr.P.C. should be exercised judiciously and only when essential for a just decision, in accordance with the principles enumerated in relevant case law.

ORDER

1. The petitioner has challenged the order dated 07.12.2021 passed in T.R. No. 43 of 2001 by the learned Special Judge (Vigilance), Bhubaneswar rejecting his application filed under Section 311 Cr.P.C., for recalling the witnesses i.e. P.W. 5, P.W.25 and P.W. 32 for their cross-examination.

2. The petitioner is facing trial for a case under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act and after prosecution evidence had been closed and the case was posted for examination of the accused under Section 313 Cr.P.C., the application under Section 311 Crl.P.C was filed on behalf of the accused praying to recall P.W.5, P.W. 25 and P.W.32 stating that some questions relating to the assets of the petitioner could not be put to these witnesses.

3. Mr. S. Panigrahi, learned counsel appearing on behalf of Mr. Deba Prasad Das, learned counsel for the petitioner places reliance on the decision of the Hon'ble Apex Court in the case of Rajaram Prasad Yadav vrs. State of Bihar & Anr reported in AIR 2013 SC 3081 and submits that power under Section 311 Cr.P.C. can be exercised by the Court at any stage if it appears to the Court that it is essential for a just decision in the case and in this case it was necessary to cross examine the three witnesses for arriving at a just and correct decision . He has submitted that P.W 32 has been examined on 12.03.2013 and the case was posted for cross examination after lunch .This witness was discharged as the defence was unable to cross examine him on the same day . He was thereafter re -examined by the prosecution on 11.01.2019 as the person who had taken charge of the investigation and submitted chargesheet had died. PW 32 was cross examined on 17.01.2020 and therefore due to the Covid 19 pandemic, the case could not be taken up and when court work was resumed, the application under Section 311 Crl.P.C was filed on 29.11.2021 for summoning him and two others for cross examination.

4. Mr. N. Maharana, learned Additional Standing Counsel (Vigilance) opposes the application and submits that the application had been filed in the learned trial court after long delay in order to delay the trial which is pending since almost twenty years and no explanation has been submitted for the delay in filing such application or how cross examination of the witnesses is necessary for a just decision in the case. Therefore the application had rightly been rejected by the learned trial court. In support of his submission, he relies on the decisions of the Hon'ble Apex Court rendered in the case of Ratanlal vrs. Prahlad Jat, (2017) 9 SCC 340, Swapan Kumar Chatterjee vs Central Bureau Of Investigation dated 04.01.2019 (Crl. Appeal No. 15 of 2019 arising out of SLP (Crl.) No. 7748 of 2017), Anurag Srivastava vrs. State of U.P. & Anr., (2010) (71) AHC 504 (A11) and CRLMC No. 3628 of 2013 dated 16.12.2013, State of Haryana vrs. Ram Meher, (2016) 8 SCC 762 and Dara Singh @ Dara vrs. Republic of India, (2003) 26 OLR 124.

5. The Apex Court in the case of Rajaram Prasad Yadav ( supra ) has referred to a number of decisions on the scope and ambit of section 311 Crl.P.C and has enumerated the principles to be kept in mind by the Courts while dealing with an application under Section 311 Cr.P.C in paragraph 23 of the judgment which is extracted below:

'23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?

b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justic