1992 (9) TMI 384 - HC - Indian Laws

Summary

Issues:
1. Application for recalling witnesses under Section 311 of the Code of Criminal Procedure.
2. Refusal of the trial Judge to allow the recall of witnesses.
3. Interpretation of the law regarding the power of the court under Section 311 of the Code.
4. Challenge to the trial Judge's order through a petition under Section 482 of the Code.

Analysis:

1. The case involved an application under Section 311 of the Code for recalling witnesses made by the mother of the deceased during a trial where non-applicants 2 and 3 were facing charges under Section 302/34 I.P.C. for the alleged murder of Shakeel Hyder. The application was based on the alleged failure of the then Public Prosecutor to properly handle the examination of witnesses, leading to a request for their recall for further examination.

2. The trial Judge had initially rejected the applications for recalling witnesses, stating that the prosecution could challenge the witnesses' evidence during final arguments and that recalling them would cause delay. However, the petitioner challenged this decision through a petition under Section 482 of the Code, supported by the State, arguing that the failure to cross-examine the witnesses during their initial examination by the prosecution left no grounds for challenging their credibility during arguments.

3. The petitioner relied on the principles laid down in Mohanlal Shamji Soni v. Union of India to emphasize the importance of using the power under Section 311 judiciously to ensure a just decision. The court noted that the failure to cross-examine the witnesses earlier was not due to a lack of necessity but rather external factors, and that recalling them was essential for a fair trial and to enable the prosecution to question them appropriately.

4. Ultimately, the court allowed the petition, setting aside the trial Judge's order and directing the immediate recall of the witnesses to facilitate cross-examination by the prosecution and potentially by the defense. The court emphasized the need for expeditious proceedings after the re-examination of the witnesses, highlighting the importance of ensuring a just decision in the trial.

This detailed analysis highlights the key legal issues surrounding the application for recalling witnesses under Section 311 of the Code, the refusal by the trial Judge, the interpretation of the law in this context, and the resolution of the matter through a petition under Section 482 of the Code.