The discretion to recall a witness under Section 311 Cr.P.C. should be exercised judiciously and only when essential for a just decision, and should not be used to delay proceedings.

Vinod K.Sharma, J.

1. This petition under Section 482 of the Code of Criminal Procedure is directed against the order dated February 18, 2005 passed by the learned Judicial Magistrate 1st Class, Chandigarh dismissing the application moved by the petitioner under Section 311 of the Code of Criminal Procedure for recalling the respondent-complainant for his further cross-examination. The impugned order (Annexure P-6) reads as under :-

"This order of mine will dispose of an application filed by the accused under Section 311 Cr.P.C. for recalling the complainant CW.2 H.K. Dass for further cross-examination. It is submitted that at the time of cross-examination of the complainant, certain documents could not be put to him which thereby affect the rights of the applicant/accused and, therefore, he be recalled for further cross-examination.

2. Notice of this application was given to the complainant who through counsel filed reply taking preliminary objection regarding maintainability that the same has been filed with mala fide intention for delaying the present proceedings. Upon merits, it was submitted that the complainant has been cross-examined and no further opportunity can be given to the accused to recall him for further cross-examination and prayed for dismissal of the application.

3. Rejoinder was filed wherein averments of the reply were denied. It was submitted that the complainant is to be confronted with income tax record and to falsify his version regarding Zen Euro-II car.

4. I have heard the Ld. Counsel for both the parties and have gone through the case file carefully.

5. The arguments of the Ld. Counsel for the parties were in consonance with their pleadings.

6. Upon hearing the Ld. Counsel for both the parties, I find no force in the arguments of the Ld. Counsel for the applicant/accused. Perusal of the file shows that the complainants examination-in-chief was recorded on 19.1.2003 as CW.2 and finally, he was cross-examined at length on 25.8.2004. Now the averment of the applicant-accused is that he could not cross-examine the complainant on certain facts and hence, he be recalled for further cross examination. Although Section 311 Cr.P.C. has a wide scope but it cannot be resorted at the will of the parties seeking to recall a witness. If such would be the case then there would be no end to the examination of witnesses-as applications would be filed as and when desired. Reference has been made by the Ld. Counsel for the accused to the observations of Honble Supreme Court in case titled as Rajendra Prasad v. The Narcotic Cell through its Officer-in-charge, Delhi as reported in 1999(3) RCR(Crl.) 440 (SC) but the same are distinguished as the facts of the case in hand are totally different. When once the witness has been cross-examined exhaustively, the applicant cannot be allowed in the garb of Section 311 Cr.P.C. to recall him at the instance of the applicant. Therefore, I see no merit in the present applicant which is hereby dismissed.

7. However, nothing said hereinabove will prejudice the rights of the parties till the final disposal of the case on merits."

2. Mr. A.K. Chopra, learned Sr. counsel appearing on behalf of the petitioner has challenged the order primarily on the ground that further cross- examination of the complainant was essential for the just decision of the case. Though, no ground for recalling was made in the application under Section 311 Cr.P.C. The learned Senior Counsel appearing on behalf of the petitioner referred to the rejoinder filed by the petitioner wherein it was asserted as under : -

"That para No. 2 of the reply to the application is incorrect therefore denied and the contents of para No. 2 of the application are reiterated. It is worth mentioning here that the important questions pertaining to income tax returns could not be put to the CW-2 Sh. H.K. Dass because on the said date i.e. when he was cross-examined on 25.8.2004, he disclosed his PAN number to be APBPD6929G. Howe