The power under Section 311 Cr.P.C to recall a witness is intended to ensure a just decision by discovering the truth; it cannot be invoked to allow a witness to undo the consequences of having turned hostile or to fill lacunae in the prosecution's case after a deliberate change in stance.

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N.S.Shekhawat J. (Oral)

1. The petitioner has filed the present petition under Section 482 Cr.P.C with a prayer to quash the impugned order dated 07.12.2023 (Annexure P-5) passed by the Court of Additional Sessions Judge, Fast Track Court, Sonipat, whereby, the application filed by the petitioner/complainant under Section 311 Cr.P.C for recalling him as a witness, was ordered to be dismissed.

2. Learned counsel for the petitioner submits that the petitioner/complainant had got registered one FIR No.484 dated 09.07.2022, under Sections 148,149,323,325,452,506 of IPC (307 of IPC added later on), Police Station Kundli, District Sonipat (Annexure P-1) against his own wife and brother-in-law as well as friends of brother-in-law. In fact, the accused had caused multiple injuries to the present petitioner. The police had investigated the matter and finally the report under Section 173 Cr.P.C was presented only against the wife and brother-in-law of the petitioner under Sections 323,325,452,506,307, 34 of IPC. In fact, the petitioner was married to Seema, main accused in the present case and two daughters namely Simran aged 16 years and Sayana was born out of the said wedlock. Since, Seema and her brother Pardeep @ Mandeep@ Monu had caused injuries to the petitioner, they were arrested by the police and were confined in jail. Consequently, the elders of the family and daughters of the petitioner had requested the petitioner to get a statement in favour of the accused Seema, so that she may be granted the concession of regular bail. The petitioner was under a bona fide impression that he had to make a statement only for the purpose of release of Seema on bail and was not aware of the fact that the accused could be acquitted only on this ground alone. He further submits that thereafter, the accused failed to fulfil her promise and again started harassing the petitioner. Thereafter, the petitioner finally came to know that as he had turned hostile, accused in the present case could be acquitted by the Trial Court. He further submits that in fact, the petitioner had made such statement only on the asking of his family members and was not aware of the consequences of any such statement. Consequently, he moved an application under Section 311 Cr.P.C with a prayer to re-call PW-1 Sumit i.e. the petitioner himself for his re-examination as he was earlier misguided by the accused in the present case. Learned counsel further submits that even the Trial Court had completely overlooked the fact that the petitioner had suffered serious injuries on his person and in case, he was not granted an opportunity to depose before the Trial Court, he would suffer serious prejudice.

3. I have heard the learned counsel for the petitioner and with his able assistance, I have gone through the record carefully.

4. Before proceeding further, it would be relevant to examine Section 311 Cr.P.C., which 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 reexamine 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.”

5. In the recent judgment of Varsha Garg Vs. The State of Madhya Pradesh & others, Criminal Appeal No. 1021 of 2022. Decided on 08.08.2022, it was held as under:

“29. The first part of the statutory provision which uses the expression “may” postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression “shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case”.