The main legal point established in the judgment is the importance of strong and valid reasons for recalling witnesses and the need to exercise the power under section 311 of the Code of Criminal Procedure with caution and circumspection.

JUDGMENT :

1. This petition under section 482 of the Code of Criminal Procedure (hereinafter referred as “Code”) has been filed to set aside the order dated 25-2-2023 passed by the learned Additional Sessions Judge, Pandhurna, District Chhindwara (M.P) in ST No. 25/2020 whereby the application under section 311 of the Code for recalling the witnesses namely PW/2 Vitthal Kolhe, PW/4 Harshika Kolhe and PW/9 Omprakash Sanodiya has been dismissed.

2. Brief facts of the case are that the petitioner is facing trial for offence under section 306/34 of the Indian Penal Code. During the trial, PW/2 Vitthal was examined on 13-12-2018, PW/4 Harshika Kolhe was examined on 6-8-2019 and PW/9 Om Prakash Sanodiya, Sub-inspector was examined on 9-11-2022. All of them has been cross-examined by all the accused also.

3. Petitioner and co-accused has filed an application under section 311 of the Code on 22-2-2023 (appended as Annexure /A) to recall the above three witnesses to ask them certain questions which had not previously put before them and the learned trial Court dismissed that application by the impugned order.

4. Learned counsel for the petitioners submits that impugned order is per-se illegal and without jurisdiction. It is also submitted that trial is still in progress and yet to be concluded and no failure of justice would occasion and no prejudice has been caused either to the applicant or to the prosecution if application is allowed. Further, the Court has discretionary power under section 311 of the Code under which the Court may summon any person as a witness or examine or recall any witness. It is also submitted that proceedings are manifestly tainted with mala fides and the proceedings are maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite them due to private and personal grudge and if the above application under section 311 of the Code is not allowed the petitioner would suffer. It is also submitted that PW/2 Vitthal Kolhe, PW/4 Harshika Kolhe and PW/9 Omprakash Sanodiya are required to be further cross-examined for determining the real controversy in the case.

5. Learned counsel for the petitioners has placed reliance on the judgment passed by various Courts in Khoob Kanhaiya Singh vs. State of M. P., 2018 Cri.L.J. 2658, Manju Devi vs. State of Rajasthan, AIR 2019 SC 176, Himanshu Singh Sabharwal vs. State of M. P. and ors., AIR 2008 SC 1943, Iddar and others vs. Aabida and another, 2007 (III) MPWN 89.

6. Learned panel lawyer vehemently opposed the prayer and submits that cross-examination of the witnesses has been done on the same day by the defence counsel and only to delay the trial, this application has been filed after delay of 5 years of recording of evidence of PW/2 Vitthal Kolhe and after four years of recording of evidence of PW/4 Harshika Kolhe.

7. Heard learned counsel for the parties and perused the record.

8. It is settled law that if conditions under section 311 of the Code are satisfied, the Court can call witness not only on the motion of either prosecution or the defence but it can do so at any stage and any person can be summoned as a witness, or recall or re-examine at any stage of proceeding where essential.

9. In the case at hand, PW/2 Vitthal has turned hostile, even though he was thoroughly cross-examined by the defence counsel. PW/4 Harshika Kolhe was also thoroughly cross-examined by the defence counsel and same is in the relation of PW/9 Omprakash.

10. On perusal of the impugned order it reveals that when the case was fixed for examination of the accused under section 313 of the Code, the accused/petitioner and other co-accused has moved an application to recall the above named witnesses on the ground that certain questions remained to be asked from aforesaid witnesses.

11. The application under section 313 must not be allowed only to fill up a lacunae in a case of the prosecution or of the defence, or to the disadvantage of the accused or to cause seri