The main legal point established in the judgment is that the discretion to recall and re-examine any person under Section 311 Cr.P.C. must be exercised judiciously and not arbitrarily, and essential evidence is necessary to arrive at a just decision.

ORDER :

RAJEEV SINGH, J.

1. Heard Mr. Farooq Ayoob, learned counsel for the applicant, Mr. Vinod Kr. Pandey, learned counsel for the opposite party No. 2, Mr. Aniruddh Singh, learned A.G.A. for the State.

2. This application under Section 482 Cr.P.C. has been filed by the applicant for quashing impugned order dated 18.05.2019 passed by Additional District & Sessions Judge, Barabanki (FTC) Court No. 37, in Sessions Trial No. 160 of 2016, under Section 311 Cr.P.C. arising out of Crime No. 385 of 2015 under Sections 302/201 I.P.C. Police Station Mohammadpur Khala, District Barabanki.

3. Learned counsel for the applicant has submitted that the opposite party No. 2. lodged the First Information Report as Case Crime No. 385 of 2015, under Sections 302 and 201 I.P.C. Police Station Mohamand Pur Khala, District Barabanki against one unknown person. In the FIR, it is alleged that the younger sister of informant aged about 18 years was studying in Jagriti Inter College, Suratganj. On 14.12.2015 she went for easing and when she did not come back, then the search was made and at about 11:30 a.m. it was informed by someone that a body of a girl is lying in the field of Arhar, then informant and his younger brother along with other villagers rushed to the said place, where the body of his sister was lying in the said field and blood was coming from her mouth. On their apprehension that his sister was killed by throttling and the body was thrown in the field. After investigation, the chargesheet was filed against the applicant. After taking cognizance on the chargesheet, the case was committed to the trial court which was registered as Sessions Trial No. 160 of 2016 and the charges were framed against the applicant and the trial was proceeded.

4. Learned counsel for the applicant has further submitted that the statements of 14 prosecution witnesses were concluded and trial is at the stage of statement under Section 313 Cr.P.C. The application under Section 311 Cr.P.C. was moved by the informant to re-call the PW-1. The objection was filed by the applicant, but without considering the objection, the application No. B-59, under Section 311 Cr.P.C. was allowed by Additional District and Sessions Judge, FTC, Court No. 37 Barabanki vide order dated 18.05.2019 and the PW-1 was recalled for re-examination. The PW-1 was examined in the year 2016, but only for the purpose to fill up the lacuna a request was made by the opposite party No. 2 to recall him again, after conclusion of 14 prosecution witnesses. Learned counsel for the applicant has further submitted that opposite party No. 2/PW-1 is not an eye witness and the mother of opposite party No. 2 is only the last seen witness as per the prosecution case. Therefore, the court below has committed error in recalling the PW-1.

5. Learned counsel for the applicant has also relied on the judgment of the Hon'ble Supreme Court in the case of Mannan Shaikh and Others Vs. State of West Bengal and Another reported in (2014) 13 SCC 59 and submitted that at the time of allowing the application under Section 311 Cr.P.C. it is obligation of the court below to examine that whether recall of witness is for filling of lacuna or it is for just decision of the case. In the present case the court below considered the complaint given by the mother of the informant in the year 2016, during the pendency of the trial. Learned counsel for the applicant has further submitted that if the informant was aggrieved from the investigation, then he should have approached before the Hon'ble High Court, as it is admitted that the opposite party No. 2 is working in the Railway Department, but he did not chooses to do so. The trial court relied the case diary related to the statement of the informant under Section 161 Cr.P.C. which was already considered by his predecessor at the appropriate stage. At this juncture no necessity is shown to recall the PW-1. Learned counsel for the applicant has further submitted that in the conclusion part