The court clarified the limited scope of section 311 Cr.P.C. and emphasized that it should not be used to cover up witness examination lacunae.

ORDER

1. The present petition under section 482 Cr.P.C. has been filed by the petitioner who is aggrieved by the order dated 23.2.2021 passed by the learned First Additional Sessions Judge, Niwadi, district Tikamgarh, in Sessions Trial No.55/2018 whereby an application filed by the prosecutrix/complainant for recalling and re-examining the witness under section 311 Cr.P.C. has been allowed without conducting any enquiry regarding the authenticity of the allegations made in the complaint.

2. The brief narrative of facts essential to appreciate the present case are that the prosecutrix initially filed a complaint case before the Court of the Judicial Magistrate First Class under section 200 Cr.P.C. disclosing therein offences under sections 498-A and 3 and 4 of the Dowry Prohibition Act, 1961. There was no other allegation relating to any other offence in the said complaint case. Thereafter, the Magistrate passed an order under section 156(3) Cr.P.C. and directed the police to register an FIR and investigate the case.

3. Pursuant to the said order passed by the learned Judicial Magistrate First Class, the police registered an FIR at the behest of the prosecutrix. Therein also, the prosecutrix had only levelled allegations against the petitioner for offences under sections 498-A and 3 and 4 of the Dowry Prohibition Act. The allegations in the FIR also did not disclose any other offences other than that under sections 498-A and 3 and 4 of the Dowry Prohibition Act. Subsequently, upon further statement of the prosecutrix, section 376 IPC was included in the charge-sheet when the same was filed before the learned court below. Thereafter, cognizance was taken of the said offences and the matter was committed to the Court of Sessions. During the course of trial, the prosecutrix was examined and crossexamined on three different dates, which are 29.3.2019, 30.10.2019 and 6.12.2019. Thereafter, she moves the application under section 311 Cr.P.C. alleging therein that on 6.12.2019 when the prosecutrix and her parents had come to attend the court proceedings and had got down from the bus, they were accosted by the petitioner and some other persons and were abducted by them and the prosecutrix was forced to give a statement before the court which was recorded on 6.12.2019. The learned court below has allowed the said application moved by the prosecutrix by giving the following findings. Firstly, the learned trial court has held that the case was listed on 29.3.2019 and after that, the petitioners side has been taking time to cross-examine the prosecutrix. Thereafter, it was listed on 30.10.2019 when again the petitioner sought time to crossexamine the prosecutrix and thereafter finally the statement was recorded on 6.12.2019. The learned court below has also accepted the allegation levelled by the prosecutrix in her application as the gospel truth and the same was one of the considerations while allowing the application. It was also held by the learned trial court that on 6.12.2019 when the prosecutrix was cross-examined she is stated to have resiled from her earlier statement.

4. Learned counsel for the petitioner has submitted that the application having been moved by the prosecutrix and not by the prosecution, was untenable and ought not to have been taken on face value by the learned trial court. As far as this contention is concerned, this court rejects the same as power of the trial court under section 311 Cr.P.C. is concerned is rather wide. It can examine, recall or re-examine any witness at the stage of enquiry, trial or other proceedings where in the opinion of the court below that such recall is essential. The court may have been encouraged to form that opinion on the basis of the application of the prosecutrix but that by itself will not render the impugned order bad in law. Therefore, the contention of the learned counsel for the petitioner, so far it is restricted to the application being untenable and the order being passed only