Patna High Court - Orders
Yogendra Yadav & Ors. vs State Of Bihar & Anr on 23 August, 2013
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.14073 of 2013
======================================================
1. Yogendra Yadav S/O Late Janglee Yadav Resident Of Village- Kusmaul
Chottki, P.S.- Marauna, District- Supaul
2. Rajendra Yadav S/O Late Janglee Yadav Resident Of Village- Kusmaul
Chottki, P.S.- Marauna, District- Supaul
3. Upendra Yadav S/O Late Janglee Yadav Resident Of Village- Kusmaul
Chottki, P.S.- Marauna, District- Supaul
4. Ranjan Kumar S/O Rajendra Yadav Resident Of Village- Kusmaul
Chottki, P.S.- Marauna, District- Supaul
5. Sanjan Kumar S/O Rajendra Yadav Resident Of Village- Kusmaul
Chottki, P.S.- Marauna, District- Supaul
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Ram Prakash Yadav S/O Late Jangilal Yadav Resident Of Village-
Kushmaul Chottki, P.S.- Marauna, District- Supaul
.... .... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Amrit Abhijeet, Adv.
Mr. Manoj Kumar Gupta, Adv.
For the Opposite Party/s : Mr. Sanjay Kumar Pandey, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
3 23-08-2013Heard learned counsel for the petitioner and the State.
In this case, petitioners are challenging the order dated 28th January 2013 passed by the Additional Sessions Judge-III, Supaul in S.T.No. 175 of 2010 by which the court below rejected the petition of recall on two grounds, namely, P.W.11 has been transferred to another place and the defence has already cross- examined the witness, any lacuna in cross-examination cannot be the basis for recall.
Instead of discussing the case on merit this Court confines its consideration on this limited issue for recall of Patna High Court Cr.Misc. No.14073 of 2013 (3) dt.23-08-2013 2/4 witness u/s 3011 Cr.P.C. P.W.11 was examined by the prosecution and cross-examined by the defence but the order dated 23rd July 2012 shows that the witness was released with objection raised from the side of defence. An application was filed for recall of the witness, taking a ground that regular advocate who was conducting the case had gone outside during that period in his absence proper cross-examination could not be conducted and subsequently additional application was filed wherein in cross-examination has been confined to Para-2 to 6. The court was not satisfied with the prayer and rejected the petition.
Counsel for the petitioners submits that the power u/s 311 Cr.P.C. is a wide power and the court can exercise that power at any stage with object of elicited the truth which will lead to just and correct decision of the case. Of course this does not mean to allow to fill up the lacuna but while exercising the power u/s 311 Cr.P.C. when the court feels that it is so necessary for ends of justice, can call a witness.
In support of his contention, counsel for the petitioners has relied on a judgment reported in (1999)6 SCC 110 (Rajendra Prasad v. Narcotic Cell.
Counsel for the State has opposed the argument of the petitioner and submitted that the proposed action is nothing but to Patna High Court Cr.Misc. No.14073 of 2013 (3) dt.23-08-2013 3/4 fill up lacuna left by him which is not permissible in law and he could have asked these questions during the cross-examination. The ground raised by the petitioner that there was no effective cross-examination on account of conducting advocate had gone outside cannot be basis of recall of witness.
Having considered the rival contention of the parties, it is well settled principle of law that the power u/s 311 Cr.P.C. can be exercised at any stage even after closure of the evidence but subject to the condition the court is satisfied that it is for the ends of justice that the witness should be re-examined or cross- examined.
It will be relevant to refer to the judgment reported in 2007(1) PLJR 10(SC) (U.T of Dadra & Haweli v. Fatehsinh Mohansinh Chauhan) where the case of Rajendra Prasad (supra) has been considered and the court has said that if the court is satisfied that it is not meant for filling the lacuna the court would not refuse to recall this witness but in case of necessity and essential to arrive at a proper finding the court would allow recall of witness and it has been also taken note of 'to err is human and no person is infallible'.
It appears that the witness was released even after the objection of petitioner as the conducting lawyer had gone Patna High Court Cr.Misc. No.14073 of 2013 (3) dt.23-08-2013 4/4 outside. The court below rejected the recall petition. Primarily it appears that the court was swayed away with the fact that the witness was transferred to another place and has not dealt with release of witness no.11 with objection.
This Court feels that the court below has acted illegally in not allowing P.W.11 for further re-cross-examination and is directed to recall P.W.11 for further cross-examination but it should be confined to the question framed by the petitioner in the supplementary petition filed on 9th November 2012.
With this observation and direction, this petition is allowed.
(Shivaji Pandey, J) Jay/-