The power under Section 311 CrPC to recall witnesses must be exercised judiciously, requiring strong justification rather than mere claims of fairness.

JUDGMENT :

AJAY BHANOT, J.

1. Heard Shri Abhishek Singh, learned counsel assisted by Shri Anuj Kumar Gupta, learned counsel for the applicant, Shri Syed Farookh Ahmad, learned counsel for the first informant-opposite party no. 2 and Shri Vivek Gupta, learned AGA for the State.

2. By the impugned order dated 11.06.2024 the application filed by the applicant under Section 311 Cr.P.C. for recall of P.W. 8 Tara Singh Patel who was the investigation officer has been declined.

3. The learned trial court while rejecting the application has first noticed the timeline of the case. As per the impugned order examination in chief of P.W. 8 Tara Singh Patel was conducted on 28.10.2022. The defence did not cross examine the P.W. 8 on the date of examination in chief. Thereafter P.W. 8 was extensively cross examined on 10.02.2023 by the defence. Adequate opportunity to cross examine P.W. 8 was thus provided to the applicant. The defence has also asked all relevant questions in the facts and circumstances of the case to the investigating officer while the latter was under cross examined. After examination of P.W. 8 and all prosecution witnesses the trial proceeded in due course. The conclusion of prosecution evidence set the stage for proceedings under Section 313 Cr.P.C. The proceedings under Section 313 Cr.P.C. too were concluded over a period of time.

4. It is fairly informed by learned counsel for the applicant that three defence witnesses have also been introduced at the stage of defence evidence. After conclusion of the evidence of both sides the matter was posted for hearing. The applicant then moved an application on 06.12.2023 under Section 311 Cr.P.C. to recall P.W. 8 for further cross examination. The trial also adverted to the merits of the case set out in application. On the back of the aforesaid reasoning and factual determination the learned trial court has rejected the application under Section 311 Cr.P.C.

5. The jurisdiction of the trial court under Section 311 Cr.P.C. is wide enough to meet the ends of justice. However, good authority has provided for caution and circumspection while exercising judicial discretion under the said provision.

6. The Supreme Court in State (NCT of Delhi) vs. Shiv Kumar Yadav reported at (2016) 2 SCC 402, it has been held: -

"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."

7. The Supreme Court in Ratanlal Vs. Prahlad Jat reported at (2017) 9 SCC 340, held as under:

"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 pe