2022 (5) TMI 462 - HC - Indian Laws

Dishonor of cheque - cross-examination of witnesses - submission boils down to the counsel who had cross-examined but not effectively cross-examined the complainant and therefore, a further opportunity should be given - HELD THAT - The provision of law clearly indicates that an application of the kind can be made at any stage of the trial. The trial admittedly is pending and is next posted on 16.04.2022. In the case at hand, the submission of the learned counsel that the cross-examination of P.W. 1 could not be complete in the light of the counsel consequently dying of COVID undoubtedly merits consideration. The petitioner has produced record to demonstrate that the counsel whom he had engaged did die of COVID - it is deemed appropriate to grant one opportunity to the petitioner to further cross-examine P.W. 1, albeit, with imposition of cost. Petition allowed.

Issues Involved:
1. Application under Section 311 of the Cr.P.C. for recalling PW-1 for further cross-examination.
2. Grounds for recall due to incomplete cross-examination and the death of the previous counsel.
3. Timeliness and justification for the recall application.
4. Court’s discretion under Section 311 of the Cr.P.C.
5. Imposition of costs and conditions for allowing the recall.

Issue-wise Detailed Analysis:

1. Application under Section 311 of the Cr.P.C. for recalling PW-1 for further cross-examination:
The petitioner sought to recall PW-1 for further cross-examination under Section 311 of the Cr.P.C. The application was filed on the grounds that the previous counsel could not complete the cross-examination effectively due to lack of time and subsequently passed away due to COVID-19.

2. Grounds for recall due to incomplete cross-examination and the death of the previous counsel:
The petitioner argued that several vital questions were omitted during the initial cross-examination on 26-08-2019. The petitioner’s counsel died due to COVID-19, and the pandemic caused significant disturbances, impacting the effectiveness of the cross-examination. The petitioner emphasized the necessity of recalling PW-1 to protect the accused's rights and ensure a fair defense.

3. Timeliness and justification for the recall application:
The application for recall was filed on 26-11-2021, more than two years after the initial cross-examination. The court noted that the cross-examination was completed on 26-08-2019, and the application was filed at a belated stage when the case was posted for arguments. The petitioner did not specify the aspects that required further cross-examination, leading the court to find the grounds insufficient and unjustifiable.

4. Court’s discretion under Section 311 of the Cr.P.C.:
Section 311 of the Cr.P.C. empowers the court to recall any witness if their evidence appears essential to the just decision of the case. The court highlighted that this discretionary power must be exercised judiciously and not arbitrarily. The court referred to the Apex Court’s interpretation in V.N. Patil v. K. Niranjan Kumar, emphasizing that the power should be used to prevent a failure of justice and must be exercised with caution and valid reasons.

5. Imposition of costs and conditions for allowing the recall:
Considering the petitioner’s submission and the death of the previous counsel due to COVID-19, the court deemed it appropriate to grant one opportunity for further cross-examination of PW-1. However, this permission was subject to the imposition of a cost of Rs. 3,000 payable to PW-1, with the condition that the cross-examination must be concluded on the same day (16.04.2022). The court made it clear that no further opportunities would be granted.

Conclusion:
The writ petition was allowed, and the order dated 23.02.2022 was quashed. The petitioner was permitted to cross-examine PW-1 on 16.04.2022, subject to the payment of costs. The court emphasized the necessity of concluding the cross-examination on the specified date and indicated that no further extensions would be granted.

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