The power to recall a witness under Section 311 of the Code of Criminal Procedure should be exercised with discretion and only for strong and valid reasons to meet the ends of justice.

JUDGMENT

Jaishree Thakur, J. - Challenge has been made to the order dated 20.8.2019 passed by the Additional District & Sessions Judge, Fatehabad, whereby an application under Section 311 of the Code of Criminal Procedure (hereinafter referred to as "the Code') filed by the petitioners for recalling two witnesses has been dismissed.

2. In brief, the facts as stated are that the petitioners herein came to be falsely accused in FIR No. 190 dated 29.4.2017 under Sections 120-B, 376-D and 506 IPC at Police Station City Tohana, District Fathehbad. The statement of the prosecutrix was recorded under Section 164 of the Code on 30.4.2017. During the course of proceedings before the trial court, the matter was compromised on 18.1.2018 between the complainant and the accused, whereby the parties agreed to solemnise a marriage of the complainant with one of the accused, namely Aashish Kumar. One of the terms of the compromise was that the complainant shall try to secure the release of all the accused. Thereafter, regular bail of the accused was allowed. It is stated that the prosecution witnesses that is Dr.Veena Batra and Inspector Maju Singh were examined by the prosecution, however on account of the compromise entered into between the parties, they could not be cross-examined at length. It is also argued that as the compromise between the parties could not be effected, an application was preferred under Section 311 of the Code by the complainant for re-examining herself and for recalling the other 2 witnesses, namely her mother and father, which was allowed. The trial court by order dated 7.8.2018 directed for recalling the witnesses and recording the statements afresh. This order was unsuccessfully challenged before this Court and the Supreme Court.

3. Mr. Rahul Sharma, learned counsel for the petitioner would contend that PW5 Dr Veena Batra and PW6 Inspector Maju Singh were examined as witnesses on 06.03.2018, whereby the application for recalling of the witnesses by the trial court was allowed on 07.08.2018, that is subsequent to the cross-examination having being conducted. It is argued that the cross examination that was conducted was not proper, as on date there was a compromise in effect. It is argued that Section 311 of the Code would permit recalling of a witness at any stage of the case and therefore the impugned order declining recalling of the said witnesses is not sustainable.

4. Per contra, Mr. A.P.S. Deol Senior Advocate, assisted by Mr. Vishal Lamba, Advocate, and Mr. Dhruv Sihag AAG Haryana, contend that the allegations in the FIR pertain to a gang rape under Section 376-D IPC. It is argued that the prosecutrix had recorded her statement under Section 164 of the Code after registration of the FIR on 30.04.2017. However, the matter was settled between the parties and it was agreed that one of the three accused would marry the complainant. Pursuant to the settlement the prosecutrix appeared as PW.1 and resiled from her version given in the FIR and the statement under section 164 of the Code, as did her parents. In terms of the compromise, all the three accused were released on bail and arrangements were made for wedding to be solemnised between one of the accused and the prosecutrix, however, on the day of the wedding i.e. on 9.3.2018, the accused did not turn up. Immediately an application was preferred on 27.03.2018 stating that she had deposed under undue influence, however the accused and his family members backed out of the compromise after bail had been secured for the accused. The application for recalling the prosecutrix and her parents was allowed by the Additional District & Session Judge and affirmed right up to the Supreme Court. It is argued that the evidence of the prosecution was closed on the 2.5.2019 and the statement under Section 313 of the Code was recorded on the 22.5.2019. It is argued that the application for recalling the witnesses examined on 06.03.2018 has been preferred after an inordinate delay.

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