Section 311 CrPC - Recalling of witnesses for further cross examination - Application under Section 311 Criminal Procedure Code cannot be rejected merely on ground that case was very old

ALLAHABAD HIGH COURT

Before :- S.C. Agarwal, J.
Criminal Revision No. 3652 of 2010. D/d. 3.9.2010

Ramoo Bhadauriya & Another - Petitioners
Versus
State of U.P. - Respondent

For the Petitioner :- Rajesh Ji Verma and S.P. Lal, Advocates.
For the Respondent :- Govt. Advocate.

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Allahabad High Court Judgments

JUDGMENT

S.C. Agarwal, J. - Heard learned counsel for the revisionists, learned A.G.A. for the State and perused the material available on record.
2. The instant revision is directed against order dated 4.8.2010 passed by Addl. Sessions Judge / F.T.C. No.1, Jalaun at Orai in S.T. No.65 of 1999 State v. Bhagwan Das & others., whereby the application of the revisionists 213 Ka under section 311 Criminal Procedure Code for recalling P.W.6 - the investigating officer was rejected.
3. Learned counsel for the revisionists submitted that initially, in the statement recorded under section 161 Criminal Procedure Code, P.W.2 - Smt. Rani has stated that on the fateful day at about 8:00 p.m., only one accused Vakil took her son Mahesh with him on the pretext of showing video. Later on, it was revealed that Mahesh was seen going along with the four persons, whereas in her statement before the Court, P.W.2 improved her version and stated that the four accused took her son with them and she had disclosed this fact to the investigating officer. The application was moved for recalling P.W.6 - S.I. Jai Ram Verma, the investigating officer to prove the contradictions and omissions in the statement of P.W.2 - Smt. Rani. Learned counsel for the revisionists further submitted that there was material contradiction and omission on the part of P.W. - Smt. Rani regarding the persons, who took her son away from her house, and inadvertently this contradiction / omission could not be put to the investigating officer and the relevant portions of the case diary could not be proved and, therefore, P.W.6 should have been recalled to prove the contradiction and omission and learned trial court committed illegality in rejecting the application of the revisionists.
4. Learned A.G.A. supported the impugned order.
5. The application was rejected by the trial court on the ground that the case was very old and was pending since 1999 and P.W.6, examined on 4.7.2009, had been thoroughly cross-examined and there was no occasion for recalling P.W.6 for further cross-examination.
6. The purpose for which P.W.6 was sought to be recalled, has not been taken note of by the trial court. That the case was very old and opportunity of cross-examination had already been given cannot be said to be sufficient ground for refusing to recall the witnesses under section 311 Criminal Procedure Code.
Section 311 Criminal Procedure Code Provides as under:
    "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 reexamine any such person if his evidence appears to it to be essential to the just decision of this case"
7. P.W.6 was not an eye-witness. There was no chance of his turning hostile. He was required for further cross-examination simply to put contradiction and omission in the statement of Smt. Rani (P.W.2) recorded by him under section 161 Criminal Procedure Code In the interest of justice, the application should have been allowed and could not have been rejected simply on the ground that the case was very old. If learned counsel for the accused, by inadvertence, could not put the contradiction and omission to the investigating officer and relevant portion of the case diary could not be proved by mistake, the same cannot be made the basis of scoring some points in a fight between the parties. No party in a trial can be foreclosed from correcting errors.
8. In these circumstances, the impugned order cannot be sustained and is liable to be set-aside.
9. The revision is allowed. The impugned order dated 4.8.2010 is set-aside. Application 213 Ka of the accused is allowed. Learned trial court is directed to summon P.W.6 - S.I. Jai Ram Verma, the investigating officer for further cross-examination by the accused in the light of application 213 Ka. However, the cross-examination shall be limited to putting contradictions and omissions in the statement of Smt. Rani (P.W.2) and for proving the relevant portions of the case diary relating to statement of Smt. Rani. Cross-examination shall not be permitted on any other point. After cross-examination of P.W.6, the case shall proceed according to law.
Revision allowed
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