Recalling a witness under Section 311 Cr.P.C. must be essential for justice, and not merely to fill gaps in the prosecution's case, to avoid prejudicing the accused's right to a fair trial.

JUDGMENT :

V. Narasingh, J.

1. The petitioner along with Opposite Parties 2 and 3 are facing trial in S.T. Case No.38/11(25/2008) on the file of learned Additional District & Sessions Judge, Bhadrak, arising out of Bhandaripokhari P.S. Case No. 131(15) of 2004 for commission of the alleged offices under Sections.147/ 148/ 323/ 325/ 294/ 307/354/302/149 of the I.P.C., read with Section. 3 of S.C. & S.T.(P.O.A) Act.

2. Being aggrieved by the order dated 27.01.2020 allowing the prayer of the prosecution for recalling P.W.13 Seta @Seeta Mallick in exercise of power under Section 311 Cr. P.C., the present CRLMC has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C.

3. Admittedly said Seta @ Seeta Mallick (P.W.13) was examined, cross-examined and discharged on 12.02.2016. On 10.12.2019 the Additional Public Prosecutor, Bhadrak filed an application under Sec. 311 Cr.P.C. to recall said P.W.13 and another for re-examination.

4. It was urged in the petition under Section 311 Cr.P.C. by the prosecution that since there are two accused persons with the same name Pratap Rout whose father’s name differ, P.W.13 is required to be recalled to clarify the position for just decision of the case.

An objection was filed to the said petition by the present petitioners opposing the prayer for recalling P.W.13 after lapse of more than three years inter alia stating therein that it would amount to filling up of the lacuna by the prosecution and as such cannot be allowed.

On consideration of the contention of the parties by the impugned order, learned Court below allowed the prayer and held thus:

“xxx xxx. Hence, in the interest of justice and for clarification of doubt and to do justice between the parties, it is necessary to recall P.W.13. So far as the prayer to recall P.W.11 is concerned, it is rejected. Accordingly the petition dtd. 10.12.2019 is allowed in part. Recall P.W.13 for her further examination.”

5. Learned counsel for the Petitioner has submitted that P.W.13 is the wife of the deceased Brahamananda Mallick was examined, cross-examined and discharged on 12.02.2016. Thereafter on 10.12.2019 petition was filed after a gap of three years for recall of P.W.13.

6. It is stated that such petition is being filed only to set at naught, the evidence of P.W.14 which ennures to the benefit of the accused. It is also further submitted that recalling of the witnesses is being resorted to somehow or the other linger the proceeding and is outcome of over jealousness of the prosecution to secure the conviction of the petitioners. In support of such contention, learned counsel for the Petitioners relied on a series of judgments of the Apex Court and also of the Delhi High Court. For brevity it is not necessary to place on record all the judgments cited.

7. The judgment reported in the case of Natasha Singh Vs. Central Bureau of Investigation(State), 2013 (5) SCC 741 and in the case of AG Vs. Shiv Kumar Yadav & Another, AIR 2015 SC 3501 relied upon by the petitioners are found to be most relevant to the case at hand.

The applicability of which will be dealt with in the subsequent paragraphs.

8. Per contra learned counsel for the State relied on the judgment of the Apex Court in the case of State Represented by The Deputy Superintendent of Police Vs. Tr. N.Seenivasagan reported in 2021 SCC Online SC 212 has submitted that interest of justice warranted recall of P.W.13 and since the petitioners would have a right to further cross-examine, no prejudice shall be caused. It is further submitted that for clarity and for effective adjudication the learned court below has rightly allowed the prayer of the prosecution to recall