The court clarified the judicial discretion of recalling witnesses under Section 311 of the Cr.P.C. must balance the need for a just decision with concerns of procedural fairness.

ORDER

The petitioner herein is the accused in C.C.No.356 of 2014 on the file of the Judicial First Class Magistrate Court, Chottanikkara. In the aforesaid case, she is being proceeded against for having committed offences punishable under Sections 408 and 420 of the IPC.

2. In the course of trial, the petitioner filed an application to recall PW1 under Section 311 of the Cr.P.C. The said application was dismissed by the learned Magistrate by order dated 20.02.2019.

3. Heard the learned counsel appearing for the petitioner, who submitted that the learned Magistrate was not justified in attributing the delay caused in disposing the proceedings on the shoulders of the petitioner. According to the learned counsel, unless the petitioner is granted one more opportunity to recall and re-examine the witness, it would result in gross travesty of justice.

4. The learned Public Prosecutor has staunchly opposed the prayer. It is submitted that it would be discernible from the order itself that the examination of PW1 commenced on 19.01.2018 and more than one year has elapsed. It is also submitted that the case is of the year 2014 and it has been lagging on for the past 5 years. Earlier application filed by the petitioner under Section 311 of the Cr.P.C was, in fact, allowed by the learned Magistrate. However, when PW1 again appeared, the learned counsel sought for time. No interference is warranted is the submission.

5. I have considered the submissions advanced and have perused the impugned order. Section 311 of the Cr.P.C. empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re- examine already examined witness. The court must form an opinion that for the just decision of the case recall or re-examination of the witness is necessary. Since the power is wide, it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary, but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case, depends on facts and circumstances of each case.

6. In the instant case, the only reason stated by the learned Magistrate is that the petitioner is instrumental in protracting the case. A perusal of the order would reveal that the delay was not occasioned by the petitioner alone. Matter got prolonged for various reasons, which are best left unsaid. In that view of the matter, I am inclined to grant one more opportunity to the petitioner. However, it shall be on terms.

7. Annexure-A3 order will stand set aside and C.M.P.No.22 of

2019 will stand allowed on condition that the petitioner remit a sum of Rs.2,500/- towards costs to the witness, who is sought to be recalled. The learned Magistrate shall list the case without delay and the petitioner shall co-operate with the trial.

This petition is disposed of with the above directions.