The main legal point established in the judgment is that the court has the power to recall and re-examine a witness if their evidence appears to be essential to the just decision of the case, as per Section 311 of Cr.P.C.

JUDGMENT

Vijay Kumar Shukla, J. - The present Revision is filed under Section 397 of Cr.P.C against the order dated 19/1/2023 passed by Special Judge, NDPS Act District - Neemuch in Trial No.59/2017 by the impugned order. The Trial Court has recalled the witness Investigating Officer Nagesh Yadav.

2. Counsel for the petitioner submits that the aforesaid order is contrary to the laid down by a co-ordinate Bench in the case of Preetam Vs. State of M.P 1994(II) MPWN 351 wherein it has been held that re-calling of witness who has been duly examined and cross-examined, the provision cannot be resorted to for filing up lacuna left by prosecution or defence.

3. After hearing learned counsel for the petitioner and upon perusal of the order, it is evident that re-call of the said witness Investigating Officer Nagesh Yadav has been held to be essential in order to just decision of the case because the sample seized has not been exhibited, statement in Roznamcha S a n a has not been taken up and the identification of seized material and samples/articles have also not been conducted. The provisions of Section 311 of Cr.P.C reads as under:-

311.Power to summon material witness, or examine person present. - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

4. It is crystal clear from the aforesaid provision that the Court has been empowered to summon any person as a witness at the stage of enquiry, trial or other proceeding. According to the aforesaid provision, a witness can be recalled not only on motion of either the prosecution or the defence but also it can be done by the Court in its own motion. The petitioner is facing a case of NDPS Act wherein it is alleged that a huge quantity of 140 KG of poppy straw, which is more than commercial quantity, has been seized. I do not find any illegality or perversity in the impugned order warranting any interference in revisional jurisdiction, however, the Trial Court shall provide an opportunity to the petitioner/accused to cross-examine the witness and to lead defence witness, if required. With the aforesaid limited observation, the Revision Petition is disposed off.