Judicial discretion under Section 311 Cr.P.C. should be exercised to ensure justice without causing undue delays or prejudice.

O R D E R

The marriage of the petitioner and the second respondent was solemnized on 20.03.2006 as per the rites and ceremonies of Hindu community and they resided together as husband and wife at his residence. But, unfortunately their relationship has strained, resulting litigation before different courts. One such case instituted by the second respondent/wife is pending before the Family Court, Alappuzha for realization of money as O.P.No.894/2006. She also preferred a complaint against this petitioner and her in-laws for treating her with cruelty and now the case is pending as C.C.No.387/2007 before the Judicial First Class Magistrate-I, Changanacherry. In the case before the Family Court, the second respondent was examined and her examination was completed on

25.11.2009. She was examined as PW1 in C.C.No.387/2007 and her examination was completed on 27.08.2011. Later, CMP No.4240/2014 was filed by the petitioner/husband under Section 311 Cr.P.C to permit him to recall and re- examine her. The said petition was dismissed by an order dated 23.02.2015 by the learned Judicial First Class Magistrate. The said order is under challenge .

2. Heard Mr. Wilson Urumese, the learned counsel for the petitioner and Mr. Alex M.Scaria, the learned counsel for the second respondent. The learned Public Prosecutor was also heard.

3. It is submitted by the learned counsel for the petitioner that the examination of the second respondent as PW1 was completed before the Magistrate Court on 27.08.2011 . He applied for the copy of the deposition and on perusal of the same, it was convinced that he omitted to put certain questions to her and also could not contradict her with the evidence tendered by her before the Family Court. Hence, he seeks for the indulgence of this Court to afford an opportunity to contradict her with her statement before the Family Court in the present case.

4. The learned counsel for the second respondent opposing the application contended that there is no ground to recall her and the intention of the petitioner is not only to prolong the matter which commenced in the year 2007 but also to harass her. If permission is granted to recall her, it would cause serious prejudice to her resulting in miscarriage of justice.

5. In order to appreciate the rival contentions, it would be profitable to reiterate Section 311 of the Code of Criminal Procedure which reads as follows:

“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''

6. A reading of this provision makes it clear that any court, at any stage, summon any person as a witness or recall any witness already examined, if the court finds it essential to take a just decision of the case.

7. Relying on the decision of the Supreme Court in State of Haryana v. Ram Mehar 2016(4)KLT SN 15 (SC) the learned counsel for the petitioner would point out that it is held that a liberal approach shall be the rule and all other parameters become exception. The Apex Court in this decision further held as follows:

''The wide discretionary power should be exercised judiciously and not arbitrarily. The court mus