IMPORTANT POINT
The discretionary power to recall witnesses under Section 311 Cr.P.C. should be exercised judiciously to prevent failure of justice, ensuring a fair trial, and preventing delay.

JUDGMENT :

1. Case called out. Nobody is present on behalf of the revisionists to press this revision.

2. When the case was listed as fresh on 13.02.2024, the learned counsel for the revisionists had sought adjournment on the ground that he was out of station. On 26.02.2024 when the case was listed a request was made for taking up the case on urgent basis but even then nobody had appeared for the revisionists when the case was taken up as fresh.

3. Today, again nobody is present on behalf of the revisionists. Accordingly, the court proceeds to decide the revision with the assistance of Sri Rishikesh Verma, the learned A.G.A. appearing on behalf of the State.

4. By means of the instant revision filed under Section 397/401 Cr.P.C. the revisionists have challenged the validity of the order dated 05.01.2024, passed by learned Additional Sessions Judge/Special Judge (E.C. Act) Lakhimpur Kheri in Sessions Trial No.348 of 2017: State Vs. Hazari and others, rejecting the application under Section 311 Cr.P.C. filed by the accused persons for recall of prosecution witness Molhey for his further cross-examination.

5. After the conclusion of the cross-examination of witness when the case was fixed for recording of statement of the accused under Section 313 Cr.P.C. the accused persons given an application under Section 311 Cr.P.C. stating that the statement of complainant Molhey has been recorded by the learned trial court but the allegations levelled in the case are of serious nature and it is necessary that the complainant be cross-examined.

6. While rejecting application under Section 311 Cr.P.C. the learned Additional Sessions Judge has recorded that although Section 311 Cr.P.C. confers power on the court to summon any person to be examined as a witness at any stage of the trial, the defense has already cross-examined PW-1 Molhey at length and thereafter the prosecution evidence was closed and the matter was fixed for recording statement of accused under Section 313 Cr.P.C. In these circumstance, it would not be proper to summon PW-1 for being cross-examined.

7. In State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402, it was held that:

"… Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including un-called for hardship to the witnesses and un-called for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined."

8. In Ratanlal v. Prahlad Jat, (2017) 9 SCC 340, it was held that: -

'17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circums