S.311 CrPC Obligates Trial Court To Recall Witness If Its Evidence Is Necessary To Decide Real Controversy: Andhra Pradesh High Court

The petitioners were accused of offences under Sections 147 and 148, read with Section 149 and 324 of the Indian Penal Code. They filed a petition to recall some of the witnesses for cross-examination. By the impugned order, the application was dismissed.

A single judge bench of Justice Ninala Jayasurya noted that the Trial Court, instead of allowing the petitioners to cross examine a witness, came to the conclusion that his evidence had very limited scope. The Court held that such a view, with a pre-conceived notion amounts to arbitrary exercise of power and denial of fair opportunity to the petitioners to establish their case.

The Court also stated that the Trial Judge was not inclined to allow the petition on the ground that the counsel for the petitioners did not turn up after completion of the chief examination of the witness for cross examination, that the witness was the Deputy Superintendent of Police, District Training Centre, West Godavari District, about 300 kilometres away, and therefore, he cannot be recalled.

The Court found the reasoning of the impugned order unsustainable under law. It referred to Crl. Petition No.6091 of 2020, on which reliance was placed. The judge had set aside an order passed by the Trial Court in rejecting an application filed under Section 311, as the senior counsel was held up before another Court and could not attend for cross examination of the prosecution witnesses, and the evidence was closed. Seeking to recall the witnesses, a petition was filed, which was dismissed. The Court quashed the order while holding:

"Cross examination of a witness in a criminal case is an important part of trial and it is only means to elicit truth from the witness to prove the innocence of the accused. If, such right is denied, the petitioners/accused will be put to serious loss and it amounts to denial of fair trial….According to Section 311 Cr.P.C., 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 be essential to the just decision of the case. Section 311 Cr.P.C contains two limbs. The first limb is discretion of the Court and the second limb does not confer any discretion and it is obligatory for the Court to summon, recall and re-examine a witness, if the Court finds that the evidence of the proposed witness is necessary to decide the real controversy between the parties, effectively."

Based on the above reasoning, the Court set aside the impugned order and directed the Trial Court fix a specific date for appearance of witness and afford an opportunity to the petitioners to cross examine. The Court also directed the petitioners to proceed with the cross examination of the witness on the date fixed by the Trial Court, without seeking adjournment.

Case Title : Seva Swarna Kumari @ Kumaramma and others Versus State of Andhra Pradesh

Citation :2022 LiveLaw (AP) 113

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