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Monday, January 23, 2012

Sec.311 of Cr.P.C recalling of witnesses at the stage of arguments or de fence evidence=“…no reasonable person properly instructed in law would allow an application filed by the accused to recall the eyewitnesses after a lapse of more than one year that too after the witnesses were examined, cross-examined and discharged.”=since in the present case recording of the statements of the accused under section 313 Cr.P.C. is over, the application under section 311 Cr.P.C. should not be entertained.

IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT PORT BLAIR CRR No.045 of 2011 (Para Toppo Vs. The State) Mr.D.Ilango .. for the petitioner Mr.S.K.Mandal Mr.M.A.Rehman … for the respondents January 05, 2012 The accused/revisionist-petitioner has filed the present application under section 397 read with section 401 Cr.P.C. challenging the impugned order dated 16.12.2011 passed by the learned Additional Sessions Judge, Andaman and Nicobar Islands, Port Blair, in SC No.63/10 whereby the learned ST No.80/10 Additional Sessions Judge has rejected the application under section 311 Cr.P.C. filed by the petitioner. The petitioner wanted to recall three witnesses who were examined, fully cross-examined and thereafter discharged. It appears from the impugned order itself that such examination and crossexamination of such witnesses took place long time back. The learned Additional Sessions Judge has found that with regard to two of the aforesaid witnesses, the cross-examination was done ten months back and with regard to the other witness the said learned Additional Sessions Judge has found that the said witness was fully crossexamined long back. It appears from the impugned order itself that the prosecution closed evidences of PWs on 14.11.2011 and after that the case was fixed for examination of the accused under section 313 Cr.P.C. on 30.11.2011. But, on that day, learned lawyer for the accused wanted time and time was allowed and 5.12.2011 was fixed for examination of the accused under section 313 Cr.P.C. But, on that day also the learned lawyer for the accused also prayed for time on the ground of un-readiness and the learned Additional Sessions Judge has also found that the learned lawyer for the accused similarly wanted time on 8.12.2011 and again on 12.12.2011 and such time was allowed and ultimately accused was examined under section 313 Cr.P.C. on 15.12.2011. The learned Additional Sessions Judge has found that the learned lawyer for the accused filed the petition under section 311 Cr.P.C. on 15.12.2011 to recall the said three prosecution witnesses. The learned advocate appearing on behalf of the petitioner has referred to a decision reported in AIR 1991 SCC 1346 in support of his contention that the Court has power to recall a witness at any stage of the proceedings. There is no dispute with regard to such proposition of law as has already been observed in the said reports. In the said reports, the Hon’ble Supreme Court has been pleased to observe that there should be a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The said learned advocate cited another decision reported in 1999 C Cr. LR(Cal) 489 in support of his contention that it is not necessary to mention the specific questions which may be required to be asked, in the application under section 311 Cr.P.C. The said learned advocate submitted that in such circumstances, the learned Additional Sessions Judge acted illegally in rejecting the application for recalling the witnesses and considering the nature of the case, particularly the seriousness of it, the learned Additional Sessions Judge should have allowed the said application under section 311 Cr.P.C. The learned advocate appearing on behalf of the Respondent- State has submitted that the said application under section 311 Cr.P.C. has no merit at all and it has been filed long after the witnesses were examined, fully cross-examined and discharged. He cited a decision reported in 2006 (9) SCC 385. In paragraph 9 of the said reports, the Hon’ble Supreme Court has been pleased to observe that, “…no reasonable person properly instructed in law would allow an application filed by the accused to recall the eyewitnesses after a lapse of more than one year that too after the witnesses were examined, cross-examined and discharged.” The said learned advocate cited another decision reported in 2007 (11) SCC 191 in support of his contention that since in the present case recording of the statements of the accused under section 313 Cr.P.C. is over, the application under section 311 Cr.P.C. should not be entertained. Having heard the learned advocates for the respective parties and having considered the facts and circumstances of the case, it appears to this Court that the learned Additional Sessions Judge concerned did not find it necessary at all to recall any of the said witnesses as he has found that there is no merit in the petition either legally or otherwise. The observations and the findings made by the learned Additional Sessions Judge in the impugned order also show that attempt was made on behalf of the accused to delay the proceedings. Keeping the observations of the Hon’ble Supreme Court, as quoted above, in mind (i.e. the observations of the Hon’ble Court in 2006 (9) SCC 386) and the facts and circumstances of this case, this Court is of the view that the learned Additional Sessions Judge concerned has rightly rejected the application under section 311 Cr.P.C. There is no merit in the present application under section 397 read with section 401 Cr.P.C. Accordingly, the present application is dismissed. Let this order be communicated to the learned court below concerned immediately. ( Tapan Kumar Dutt, J. )

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