[S.311 CrPC] Witness Cannot Be Recalled Merely Because Party Failed To Put Certain Important Questions During Cross-Examination: Gujarat HC

While dismissing the criminal revision petition, Justice Umesh A. Trivedi observed that the petitioner has not mentioned what is left to be asked to the said witnesses and therefore has failed to show that without recalling the witnesses, court is unable to deliver the judgement.

The revision petition challenged the order passed by the Additional Sessions Judge dated 02.06.2022, which rejected the recalling of certain prosecution witnesses for cross-examination by the accused.

The counsel for petitioner, Mr. R.D. Chauhan argued that if the prosecution witness Nos. 5, 7 and 8 are recalled, as important questions were left out to be asked to them in a cross-examination, there is no prejudice caused to the prosecution.

He further stated that during the trial the accused was granted temporary bail several times and there was no abuse of the same, therefore, there is no harm to recall the said witnesses.

Learned APP for the state, Mr. Utkarsh Sharma contended that there is no valid ground stated by the petitioner to recall the witness and to fill up the lacuna, no witness can be recalled even at the instance of the accused.

The court ruled:

“It is clear that, to the fullest satisfaction of the learned advocate representing the accused, all the three witnesses for recall of whom this application is filed, were cross-examined. Therefore, there is no question of recalling them, that too, on an application made by the accused after approximately two and a half years of their examination concluded before the Court.”

The court also observed that the decision of Apex Court in Mohanlal Shamji Soni v. Union of India, reported in 1991 (2) GLR 974 cited by the counsel for the petitioner does not come to his rescue as the Supreme Court has held that Section 311 empowers the Courts to invoke its power in this regard at any stage until the judgment is pronounced but at the same time, it has also been said that the power must be used judiciously and not capriciously or arbitrarily.

The court further stated:

“It is rightly concluded by the learned Judge that either to fill up lacuna or with the change of an advocate, no witness can be recalled at the instance of the accused.”

Hence, the revision petition was dismissed for the above mentioned reasons.

Case Title: Imran Karimbhai Madam v. State of Gujarat

Case Citation: 2023 Livelaw (Guj) 24

Coram: Justice Umesh A. Trivedi

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