BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 10.12.2025

CORAM

THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI

Crl.O.P.(MD).No.3910 of 2024

and

Crl.M.P.(MD)No.13756 of 2024

Abin @ Abinraj ... Petitioner

Vs.

The State of Tamilnadu,

Rep. by, the Inspector of Police, Adirampattinam Police Station,

Thanjavur District.

(Cr.No.61 of 2018) ... Respondent

Prayer : Criminal Original Petition is filed under Section 528 of BNSS, 2023, to call for the records and set aside the order passed in Crl.M.P.No.533 of 2023 on the file of the learned III Additional District & Sessions Court, Thanjavur at Pattukottai, dated

20.12.2023, by allowing this petition.

For Petitioner : Mr.P.Kannathasan

For Respondent : Mr.S.Ravi,

Additional Public Prosecutor

ORDER

Preface:

The power of recall under Section 311 Cr.P.C. is one of the most salutary provisions in the Code intended to ensure that the “best evidence” is placed before the Court and that the truth is discovered. The Hon’ble Supreme Court has reiterated time and again that the determinative factor is not the stage of the trial, but whether the evidence sought to be elicited is essential for a just decision of the case.

2. In the present case, the petitioner, who is the first accused in a charge of murder under Section 302 r/w 149 IPC, seeks recall of PW-1 and PW-4, both admitted eye-witnesses, for limited further cross-examination on material contradictions which, according to the petitioner, were not put to the witnesses for reasons attributable to the lapse of earlier counsel.

3. The lower Court dismissed the application on the ground that PW-1 and PW-4 were already cross-examined at length, and that the petition was belated and intended to protract the proceedings.

The correctness of such reasoning now falls for consideration.

Prosecution Case:

4. The prosecution alleges that the petitioner and other accused formed an unlawful assembly and committed the murder of the deceased. A case was registered in Crime No.61 of 2018 for offences under Sections 147, 148, 506(ii), 302 r/w 149 IPC, and the matter was taken on file as S.C.No.95 of 2019.

5. During trial, 15 witnesses were examined on the side of the prosecution, and the remaining official witnesses including the Investigation Officer and the Post-Mortem Doctor were yet to be examined.

Petitioner’s Case Before the Trial Court:

6. The petitioner filed Crl.M.P.No.533 of 2023 under Section

311 Cr.P.C., 1973, to recall PW-1 and PW-4, contending that: (i)earlier defence counsel did not confront the witnesses with vital contradictions; (ii)PW-1 and PW-4 are star eye-witnesses; (iii)failure to put contradictions would gravely prejudice the defence; and that (iv)recall was sought not to delay the proceedings but to secure a fair trial.

7. The Trial Court dismissed the petition on 20.12.2023, holding that the cross-examination was already elaborate and that the petition was intended to drag on the trial.

Grounds before this Court:

8.The petitioner challenges the order primarily on the following grounds:

(i) The learned Trial Court failed to appreciate that Section 311 Cr.P.C., 1973, is meant to secure justice, not to punish innocent errors of counsel.

(ii) The Petitioner has changed counsel and now wishes to confront witnesses with material contradictions, without which the defence would be crippled.

(iii) The learned Trial Court failed to record any finding on whether the proposed questions were “essential for a just decision”.

(iv) Dismissal of the application violates the petitioner's fundamental right to a fair trial under Article 21 of the Constitution.

Submissions:

9. The learned counsel for the petitioner submitted that, PW-1 and PW-4 are crucial eye-witnesses whose testimony is the backbone of the prosecution case. The earlier counsel did not put essential contradictions and omissions from the FIR, medical records, and statements under Section 161 Cr.P.C., 1973. The petitioner does not seek a roving enquiry or repetition of questions; only specific, relevant contradictions ar