Case Note & Summary
The petitioner, Dnyaneshwar Murlidhar Kapile, original accused no.3 in Sessions Case No. 35/2012, filed a criminal writ petition under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973, challenging the order dated 7-9-2012 passed by the learned Additional Sessions Judge, Vaijapur, rejecting his application (Exhibit 103) to recall prosecution witness no.1, Suresh Baburao Kolthe, for further cross-examination. The case arose from a charge sheet filed against the petitioner and seven others for offences under Sections 498-A, 306, 304-B, 323, 504, 506 read with Section 34 of the Indian Penal Code. The prosecution examined PW1 Suresh Kolthe on 8-6-2009, and his cross-examination was conducted on 9-6-2009, 1-10-2009, and 7-4-2010. On 7-4-2010, further cross-examination was deferred to 25-6-2010. On that date, the petitioner's counsel sought adjournment via Exhibit 71, but the trial court rejected it and directed the petitioner to cross-examine the witness. The petitioner refused, and the court discharged the witness. Subsequently, on 28-2-2012, the petitioner filed Exhibit 103 to recall PW1 for further cross-examination, which was opposed by the prosecution. The trial court rejected the application on 7-9-2012, citing a delay of about 1 year and 7 months without sufficient reason. The High Court, after hearing arguments, held that the trial court's order was too harsh and that the petitioner should be given an opportunity to cross-examine PW1 to ensure a fair trial, especially since the witness was still available. The court allowed the petition, set aside the impugned order, and directed the trial court to recall PW1 for cross-examination on the same day, subject to payment of costs of Rs. 500 to the witness.
Headnote
A) Criminal Procedure - Recall of Witness - Section 311 Code of Criminal Procedure, 1973 - The court has wide discretion to summon or recall any witness at any stage if his evidence appears essential to the just decision of the case - The trial court rejected the application on ground of delay of 1 year 7 months, but the High Court held that the petitioner should be given an opportunity to cross-examine PW1 to ensure fair trial, subject to payment of costs (Paras 1-8). B) Constitutional Law - Supervisory Jurisdiction - Article 227 Constitution of India - The High Court can interfere with an interlocutory order if it results in failure of justice - The impugned order rejecting recall of witness was set aside as it deprived the accused of a fair opportunity to defend (Paras 3, 8).
Issue of Consideration
Whether the trial court was justified in rejecting the application to recall a prosecution witness for further cross-examination on the ground of delay, and whether the petitioner should be granted an opportunity to cross-examine the witness in the interest of justice.
Final Decision
The petition is allowed. The impugned order dated 7-9-2012 passed by the learned Additional Sessions Judge, Vaijapur, below Exhibit 103 in Sessions Case No. 35/2012 is quashed and set aside. The trial court is directed to recall PW1 Suresh Baburao Kolthe for further cross-examination on the same day, subject to payment of costs of Rs. 500 to the witness by the petitioner.
Law Points
- Recall of witness
- further cross-examination
- Section 311 CrPC
- Article 227 Constitution of India
- Section 482 CrPC
- opportunity of hearing
- fair trial
