2003 (2) TMI 561 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the Writ Petitions.
2. Exercise of discretion under Section 311 of Cr.P.C.
3. Allegations of malafide intentions in recalling witnesses.
4. Impact of political rivalry on the case.
5. Previous withdrawal of a similar application and its implications.
6. Timing and delay in filing the application for recalling witnesses.

Issue-wise Detailed Analysis:

1. Maintainability of the Writ Petitions:
The petitioners filed Criminal Writ Petitions under Section 482 of Cr.P.C. after withdrawing their Criminal Revision Applications. The contention was whether the Writ Petitions were maintainable given the previous withdrawal. The court noted that inherent powers under Section 482 could be invoked even if revision was barred under Section 397(2) of Cr.P.C., as established in Madhu Limaye's case. However, the court also considered the decision in Rajinder Prasad's case, which emphasized that inherent powers should be exercised sparingly and only in cases of failure of justice or misuse of judicial mechanism. Given the similarity of facts with Rajinder Prasad's case, the court concluded that the Writ Petitions were not maintainable as the revision applications had been previously withdrawn.

2. Exercise of Discretion under Section 311 of Cr.P.C.:
Section 311 of Cr.P.C. allows the court to summon or recall witnesses if their evidence is essential to the just decision of the case. The court found that the Sessions Judge had the discretion to recall and re-examine the four witnesses, as their evidence was deemed essential. The court clarified that lacuna in the prosecution case refers to inherent weaknesses in the case, not oversights or inadvertence in presenting evidence. Since the witnesses had initially turned hostile due to threats and were now willing to testify truthfully, recalling them did not constitute filling a lacuna in the prosecution case.

3. Allegations of Malafide Intentions in Recalling Witnesses:
The petitioners argued that the prosecution's application to recall witnesses was malafide, lacking details about the threats and the timing of the witnesses' change of heart. The court noted that the witnesses had provided affidavits explaining the threats and their willingness to now testify truthfully. The court found no evidence of malafide intentions, as the witnesses' statements under Section 161 of Cr.P.C. remained consistent, and their delayed willingness to testify did not imply malafide actions.

4. Impact of Political Rivalry on the Case:
The petitioners highlighted the political rivalry between the accused and the prosecution witnesses, suggesting that the application to recall witnesses was influenced by this rivalry. The court acknowledged the political context but emphasized that the witnesses' presence at the incident and their initial statements under Section 161 of Cr.P.C. were undisputed. The court concluded that the political rivalry did not undermine the credibility of the witnesses' affidavits or the prosecution's application to recall them.

5. Previous Withdrawal of a Similar Application and Its Implications:
The petitioners argued that the prosecution's opposition to a previous application for recalling a witness (Criminal Application No. 3160 of 2001) barred them from making a similar application. The court found that the previous application was opposed mainly due to the delay and the request for transferring the case, not the merits of recalling the witness. Since the previous application was withdrawn without a court decision on the merits, it did not operate as res judicata, allowing the prosecution to file a new application.

6. Timing and Delay in Filing the Application for Recalling Witnesses:
The petitioners contended that the delayed application to recall witnesses indicated malafide intentions. The court noted that the trial was ongoing, with some witnesses yet to be examined, including the Investigating Officer. The delay in the witnesses coming forward was attributed to the threats they faced, and their willingness to testify now was seen as an effort to provide truthful evidence. The court concluded that the delay did not imply malafide intentions and did not prejudice the accused's defense.

Conclusion:
The court dismissed the Writ Petitions, finding no abuse of process or miscarriage of justice in the Sessions Judge's order to recall and re-examine the witnesses. The court emphasized that the witnesses' testimony was essential for a just decision, and the accused would have the opportunity to cross-examine them. The court also refused the petitioners' request for time to approach the Supreme Court, noting the trial's prolonged delay.