[Section 311 Cr.PC] Application To Recall Witness Is Valid On Grounds Of Inadequate Examination By Previous Counsel: Meghalaya High Court

The Meghalaya High Court observed that the accused's application under Section 311 of the Code of Criminal Procedure, 1973 (Cr.PC) seeking to recall a witness is justified on the ground that the previous counsel did not examine the witness on necessary facts and that re-examination by the new counsel is crucial for the outcome of the trial.

Justice B. Bhattacharjee was deciding a criminal petition filed by the petitioners/state against the Trial Court's order which allowed the application filed by accused/respondent under Section 311 Cr.PC for recalling a witness. The accused/respondent filed an application to recall PW-2 on the ground that PW-2 was cross-examined by a legal aid counsel and not a counsel of accused's choice.

The accused/respondent contended that the previous counsel had not questioned the PW-2 on certain facts which were of vital importance and which would affect the outcome of the trial. On the other hand, the petitioners/state contended that a mere change of counsel or incompetence of is not a legally justifiable ground for recalling a witness.

Examining Section 311 Cr.PC, the High Court stated “The paramount requirement for consideration to exercise jurisdiction under Section 311 Cr.PC is whether calling of a witness is necessary for the just decision of a case.”

In the present case, the Court noted that the evidence of PW-2 was crucial for determination of truth as PW-2 was the Secretary of a Committee in which the accused was the Chairman. He along with accused played a role in withdrawal and distribution of funds for a scheme.

The Court stated that the reasons provided by the accused/respondent appeared to be “for correction of bonafide error not related to mere convenience.” On the contentions of the petitioners/state, it noted that the petitioners/state did not contend that the recalling of witness would cause undue delay in the trial or cause hardship to the witness.

The Court remarked that the Trial Court is best suited to judge the importance of witnesses in a criminal trial. It stated that a Trial Court's order under Sec 311 Cr.PC should not be interfered with unless there is a manifest error of fact or law.

The High Court held that the Trial Court's order was reasoned and took into consideration relevant facts of the case. It asserted that the recalling PW-2 would not provide any undue advantage to the respondent/accused or cause prejudice to the petitioners/state.

The Court was of the opinion that re-examination of PW-2 would help the Trial Court “to arrive at a just decision and to avoid injustice and miscarriage of justice.”

It thus upheld the order of the Trial Court under Section 311 Cr.PC and dismissed the petition of the State.

Case title: State of Meghalaya & Anr. vs. Shri Traiborlang Khongrymmai (Crl. Petn. No. 104 of 2023)

Citation: 2024 LiveLaw (Meg) 16

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