Case Note & Summary
The petitioner, Kartar Makhija, was the original informant in a case involving offences under Sections 304B, 306, 498A read with Section 34 of the Indian Penal Code against respondents No. 1 to 3 (accused). During the trial, the accused filed an application under Section 311 of the Code of Criminal Procedure to recall the petitioner, who was examined as Prosecution Witness No. 2, for further cross-examination. The trial court initially rejected that application, but on a criminal writ petition (No. 1231/2018), this Court quashed the rejection and directed the recall of the witness for further cross-examination. The order of recall was specifically to allow cross-examination on a suicide note that had been subsequently brought on record by the prosecution. When the petitioner entered the witness box, the accused attempted to cross-examine him on all aspects beyond the suicide note. The prosecution then filed an application (Exh. 84) seeking to restrict the cross-examination to the suicide note, which the trial court rejected. The petitioner challenged that rejection in the present writ petition under Article 227 of the Constitution and Section 482 CrPC. The High Court allowed the petition, holding that the recall of the witness was limited to the purpose of cross-examination on the suicide note, and the accused cannot expand the cross-examination beyond that scope. The court emphasized that the order of recall must be strictly adhered to, and cross-examination on recall is confined to the new evidence. The impugned order was quashed and set aside, and the trial court was directed to permit cross-examination only on the suicide note.
Headnote
A) Criminal Procedure - Recall of Witness - Section 311 CrPC - Scope of Cross-Examination - The prosecution sought to restrict cross-examination of a recalled witness to the suicide note, which was the basis for recall. The trial court rejected the application, but the High Court held that the recall was limited to the purpose of cross-examination on the suicide note, and the accused cannot expand cross-examination beyond that scope. Held that the order of recall must be strictly adhered to, and cross-examination on recall is confined to the new evidence (Paras 5-7).
Issue of Consideration
Whether the trial court was justified in rejecting the prosecution's application to restrict the cross-examination of a recalled witness to the suicide note, and whether the accused can cross-examine the witness on all aspects beyond the scope of the recall order.
Final Decision
The High Court allowed the writ petition, quashed and set aside the impugned order dated 15.10.2018, and directed the trial court to permit cross-examination of the petitioner (PW-2) only on the suicide note.
Law Points
- Recall of witness under Section 311 CrPC is limited to the purpose for which recall was granted
- Scope of cross-examination on recall is restricted to the new evidence
- Order of recall cannot be expanded beyond its terms
- Section 311 CrPC does not permit de novo cross-examination
Case Details
2019 LawText (BOM) (01) 155
Criminal Writ Petition No. 1514 of 2018
Mr. Zai Ul Mustafa for Petitioner, Mr. N.S. Ghanekar for Respondents 1-3, Mr. S.P. Deshmukh APP for Respondent 4/State
Kartar s/o Tahelram Makhija
Bharat s/o Harish Manani, Akash s/o Harish Manani, Namrata w/o Akash Manani, The State of Maharashtra
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Nature of Litigation
Criminal writ petition under Article 227 of Constitution and Section 482 CrPC challenging trial court order rejecting prosecution's application to restrict cross-examination of recalled witness to suicide note.
Remedy Sought
Petitioner (original informant) sought to quash the trial court's order and direct that cross-examination of the recalled witness be restricted to the suicide note.
Filing Reason
The trial court rejected the prosecution's application (Exh. 84) to restrict cross-examination of the petitioner (PW-2) to the suicide note, despite the recall order being limited to that purpose.
Previous Decisions
The trial court had earlier rejected the accused's application under Section 311 CrPC to recall PW-2, but this Court in Criminal Writ Petition No. 1231/2018 quashed that rejection and directed recall for cross-examination on the suicide note.
Issues
Whether the trial court erred in rejecting the prosecution's application to restrict cross-examination of the recalled witness to the suicide note.
Whether the accused can cross-examine a recalled witness on all aspects beyond the scope of the recall order.
Submissions/Arguments
Petitioner argued that the recall of PW-2 was specifically for cross-examination on the suicide note, and the accused cannot expand cross-examination beyond that.
Respondents/accused argued that once a witness is recalled, they are entitled to cross-examine on all aspects.
Ratio Decidendi
When a witness is recalled under Section 311 CrPC for a limited purpose, the cross-examination on recall must be restricted to that purpose. The order of recall cannot be expanded to allow cross-examination on all aspects, as it would defeat the purpose of the recall and cause prejudice to the prosecution.
Judgment Excerpts
The learned Additional Sessions Judge had rejected the application and one of the accused had preferred Criminal Writ Petition No. 1231/2018 before this Court. By the order dated 11.09.2018 this Court had quashed and set aside the order of the learned Trial Judge and had directed the Prosecution Witness No. 2 to be recalled for further cross-examination.
Since they were only permitted to cross-examine the witness touching the suicide note, any such attempt by the defence was inadmissible.
Procedural History
The petitioner (original informant) lodged a crime against accused for offences under Sections 304B, 306, 498A read with 34 IPC. During trial, accused filed application under Section 311 CrPC to recall PW-2 (petitioner) for cross-examination. Trial court rejected that application. Accused filed Criminal Writ Petition No. 1231/2018, which was allowed by this Court on 11.09.2018, directing recall of PW-2 for cross-examination on the suicide note. When PW-2 appeared, accused attempted to cross-examine on all aspects. Prosecution filed application (Exh. 84) to restrict cross-examination to suicide note. Trial court rejected that application on 15.10.2018. Petitioner filed the present writ petition challenging that rejection.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 311, 482
- Constitution of India: 227
- Indian Penal Code, 1860 (IPC): 304B, 306, 498A, 34
