IMPORTANT POINT
The court upheld the trial court's decision to deny the recall of a witness under Section 311 Cr.P.C. due to lack of specific questions and significant delay in filing the application.

JUDGMENT :

RAJEEV SINGH, J.

1. Heard learned counsel for the applicant and Shri Rao Narendra Singh, learned A.G.A. assisted by Ms. Nikita Mishra.

2. The present application has been filed with a prayer to quash the order dated 21.09.2024 passed in S.T. No. 161 of 2021, under Sections 366, 376-D, 506 I.P.C. rejecting the application under Section 311 Cr.P.C.

3. Learned counsel for the applicant submits that the applicant was falsely implicated in the present case. It is further submitted that the applicant was not named in the F.I.R. and his name was surfaced for the first time during the course of investigation in the statement of the victim recorded under Section 164 Cr.P.C. Thereafter, her Mazeed statement under Section 161 Cr.P.C. was also recorded, in which, she again reiterated her version given under Section 164 Cr.P.C. before the Magistrate. It is also submitted that charge sheet was submitted by the Investigating Officer, on which, cognizance was taken by the court and the matter was committed to court of Session. After framing of charges, the victim was called for examination-in-chief on 25.01.2023 and on the same day, she was cross-examined also. Thereafter, all the prosecution witnesses have been examined and the case is being listed for recording the statement under Section 313 Cr.P.C.

Submission of learned counsel for the applicant is that later on, a new counsel was engaged, who examined all the records and suggested for moving application for recall of the witness (P.W. 2-victim), on the ground that there was contradiction in her statements under Sections 161 and 164 Cr.P.C. as well as in the contents of the F.I.R., and the earlier counsel failed to ask certain questions from the victim and, therefore, to clarify the same, the victim may be summoned. It is vehemently submitted that the said application moved under Section 311 Cr.P.C. (now Section 348 of BNSS) was rejected by the trial court vide impugned order dated 21.09.2024 in mechanical manner. Placing reliance on the decision of the Hon'ble Supreme Court in the case of Satbir Singh Vs. State of Haryana & Ors. SLP (Crl.) No. 1258 of 2022, learned counsel for the applicant submits that it is well settled by the Hon'ble Apex Court that for substantial justice, power under Section 311 Cr.P.C. is to be invoked by the trial court, but the same has been rejected by the court concerned, though in the present case, summoning of the victim for cross-examination is vital. It is, thus, submitted that the indulgence of this Court is necessary.

4. Learned A.G.A. vehemently opposes the prayer of the applicant and while drawing the attention of the Court towards the application moved by the applicant under Section 311 Cr.P.C. submits that the said application was moved only on the ground of change of counsel, who observed that certain contradictions were there in the F.I.R. as well as in the statements of the victim recorded under Sections 161 and 164 Cr.P.C. However, no such particular point has been raised in the said application to clarify such questions, which was not asked by the said earlier counsel. Learned A.G.A. also submits that it is obligatory on the part of the applicant/his counsel to mention the specific points for asking in the cross-examination. It is next submitted that this aspect was also observed by the Hon'ble Supreme Court in the case relied by the learned counsel for the applicant, i.e., Satbir Singh (supra).

Learned A.G.A. while placing reliance on the decisions of Hon'ble Apex Court in the cases of Manju Devi Vs. State of Rajasthan, (2019) 6 SCC 203, Natasha Singh Vs. C.B.I. (2013) 5 SCC 741 and Rajaram Prasad Yadav Vs. State of Bihar & Anr. (2014) 4 SCC (Crl.) 256, submits that only for the sake of filling lacuna, no witness should be recalled by invoking the provisions of Section 311 Cr.P.C. It is, thus, submitted that there is no illegality in the order passed by the trial court and the present application is liable to be dismissed.

5. Considering the