Case Note & Summary
The applicant, Sudhakar Tukaram Dhatrak, challenged an order dated 11.8.2009 passed by the Additional Sessions Judge, Chandrapur, in Special Case No. 12 of 2003, which recalled a prosecution witness for cross-examination. The applicant was the accused in a corruption case under the Prevention of Corruption Act. The complainant, a prosecution witness, had stated in examination-in-chief that the accused demanded and accepted Rs.250/- as a bribe. However, during cross-examination by the defence, the witness changed his stand and claimed that the amount was a hand loan repaid by the accused. This effectively destroyed the prosecution's case. The trial court, relying on Section 138 of the Evidence Act, ordered the recall of the witness to allow the prosecution to cross-examine him and, if necessary, declare him hostile. The applicant argued that Section 138 of the Evidence Act does not permit recalling a witness for cross-examination by the party who called him, and that the trial court's reasoning was flawed. The High Court, per Justice A.B. Chaudhari, examined the impugned order and the submissions. The court observed that the complainant had clearly turned hostile during cross-examination, and the only way for the prosecution to salvage the situation was to recall the witness, cross-examine him, and then declare him hostile. The court noted that while the trial court had cited Section 138 of the Evidence Act, the power to recall a witness is also available under Section 311 of the Code of Criminal Procedure, 1973. The High Court held that the impugned order could be read as one under Section 311 CrPC, which confers wide discretion on the court to summon or recall any witness for a just decision. The court found that the trial court's exercise of power was justified in the peculiar facts of the case, as the accused would otherwise take advantage of the witness's somersault. The High Court dismissed the criminal application, upholding the trial court's order.
Headnote
A) Criminal Procedure - Recall of Witness - Section 311 CrPC - Hostile Witness - The trial court recalled a prosecution witness who had turned hostile during cross-examination, to allow the prosecution to cross-examine him and declare him hostile. The High Court held that the order, though purportedly under Section 138 of the Evidence Act, could be read as one under Section 311 CrPC, which confers power to recall any witness for just decision. The court found that the recall was necessary to prevent the accused from taking advantage of the witness's somersault. (Paras 2-5) B) Evidence Act - Cross-Examination of Own Witness - Section 138 Evidence Act - Hostile Witness - The court noted that Section 138 of the Evidence Act does not permit a party to cross-examine its own witness unless declared hostile. However, the trial court's order to recall the witness was justified under Section 311 CrPC to allow the prosecution to first cross-examine the witness and then declare him hostile if he did not support the prosecution. (Paras 2, 5)
Issue of Consideration
Whether the trial court was justified in recalling a prosecution witness for cross-examination after the witness turned hostile during cross-examination, and whether the order could be sustained under Section 311 of the Code of Criminal Procedure, 1973.
Final Decision
The High Court dismissed the criminal application, upholding the trial court's order to recall the witness. The court held that the order could be read as one under Section 311 CrPC, which confers power to recall a witness for a just decision, and that the recall was necessary to prevent the accused from taking advantage of the witness's hostile stand.
Law Points
- Section 311 CrPC
- recall of witness
- hostile witness
- cross-examination
- Section 138 Evidence Act
