Case Note & Summary
The petitioner, Kartar s/o Tahelram Makhija, was the original informant in a criminal case registered against respondents No. 1 to 3 (accused) for offences under Sections 304B, 306, 498A read with Section 34 of the Indian Penal Code, arising from the dowry death of his daughter. During the trial, the prosecution had brought on record a suicide note. The accused filed an application under Section 311 of the Code of Criminal Procedure, 1973 (CrPC) to recall the petitioner, who had been examined as Prosecution Witness No. 2, for further cross-examination. The trial court initially rejected the application, but on a criminal writ petition (No. 1231/2018) filed by one of the accused, the High Court on 11.09.2018 quashed the rejection and directed that the witness be recalled for further cross-examination. When the petitioner entered the witness box, the defence attempted to cross-examine him on all aspects of the case, not just the suicide note. The prosecution then filed an application (Exh. 84) before the trial court seeking to restrict the cross-examination to the suicide note, which was the basis for the recall. The learned Additional Sessions Judge, Aurangabad, rejected that application on 15.10.2018. Aggrieved, the petitioner filed 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 a witness under Section 311 CrPC is limited to the purpose for which recall was granted. Since the recall was specifically to enable cross-examination on the suicide note, the defence could not expand the scope to other matters. The court set aside the trial court's order and directed that cross-examination be restricted to the suicide note.
Headnote
A) Criminal Procedure - Recall of Witness - Section 311 CrPC - Scope of Cross-Examination - When a witness is recalled under Section 311 CrPC for further cross-examination limited to a specific document (suicide note), the cross-examination must be restricted to that document and cannot be expanded to other aspects of the case. The court held that the defence cannot use the recall as an opportunity to cross-examine the witness on matters already covered or unrelated to the purpose of recall. (Paras 5-7)
B) Criminal Procedure - Abuse of Process - Section 482 CrPC - Quashing of Orders - The High Court, in exercise of its inherent powers under Section 482 CrPC and Article 227 of the Constitution, can set aside an order of the trial court that permits cross-examination beyond the scope of recall, as it amounts to an abuse of the process of court. (Para 8)
Issue of Consideration
Whether the cross-examination of a prosecution witness recalled under Section 311 CrPC can be restricted to the suicide note which was the basis for recall, or whether the defence is entitled to cross-examine on all aspects of the case.
Final Decision
The High Court allowed the writ petition, set aside the trial court's order dated 15.10.2018, and directed that the cross-examination of the petitioner (PW-2) be restricted to the suicide note only.
Law Points
- Recall of witness under Section 311 CrPC is limited to the purpose for which recall was granted
- Cross-examination cannot be expanded beyond the scope of the new evidence
- Scope of recall is confined to the specific document or evidence that necessitated recall
Case Details
2019 LawText (BOM) (03) 1
Criminal Writ Petition No. 1514 of 2018
Mr. Zai Ul Mustafa for Petitioner, Mr. N.S. Ghanekar for Respondents No. 1 to 3, Mr. S.P. Deshmukh APP for Respondent No. 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 the Constitution and Section 482 CrPC challenging the trial court's order rejecting the prosecution's application to restrict cross-examination of a recalled witness to the suicide note.
Remedy Sought
The petitioner (original informant) sought to set aside the trial court's order dated 15.10.2018 and to direct that the cross-examination of the petitioner as PW-2 be restricted to the suicide note.
Filing Reason
The trial court allowed the defence to cross-examine the petitioner on all aspects of the case despite the recall being limited to the suicide note, which the petitioner contended was beyond the scope of the recall order.
Previous Decisions
The trial court had initially rejected the accused's application under Section 311 CrPC to recall the petitioner. On a criminal writ petition (No. 1231/2018), the High Court on 11.09.2018 quashed that rejection and directed recall for further cross-examination. Subsequently, the trial court rejected the prosecution's application (Exh. 84) to restrict cross-examination to the suicide note.
Issues
Whether the cross-examination of a prosecution witness recalled under Section 311 CrPC can be restricted to the suicide note which was the basis for recall.
Whether the trial court's order permitting cross-examination beyond the scope of recall amounts to an abuse of process.
Submissions/Arguments
Petitioner argued that the recall was specifically for cross-examination on the suicide note, and the defence cannot expand the scope to other matters.
Respondents/accused argued that once a witness is recalled, the defence is entitled to cross-examine on all aspects of the case.
Ratio Decidendi
When a witness is recalled under Section 311 CrPC for further cross-examination limited to a specific document or purpose, the cross-examination must be confined to that document or purpose. The defence cannot use the recall as an opportunity to cross-examine the witness on matters already covered or unrelated to the purpose of recall. Allowing such expanded cross-examination would be an abuse of the process of court.
Judgment Excerpts
Since they were only permitted to cross-examine the witness touching the suicide note, any such attempt by the defence was inadmissible.
The recall of a witness under Section 311 CrPC is limited to the purpose for which recall was granted.
Procedural History
The petitioner lodged an FIR leading to registration of crime and trial for offences under Sections 304B, 306, 498A IPC. During trial, a suicide note was brought on record. The accused filed an application under Section 311 CrPC to recall the petitioner (PW-2) for further cross-examination. The trial court rejected the application. One accused filed Criminal Writ Petition No. 1231/2018, and the High Court on 11.09.2018 quashed the rejection and directed recall. When the petitioner entered the witness box, the defence attempted to cross-examine on all aspects. The prosecution filed application (Exh. 84) to restrict cross-examination to the suicide note, which the trial court rejected on 15.10.2018. The petitioner then filed the present writ petition.
Acts & Sections
- Code of Criminal Procedure, 1973: 311, 482
- Indian Penal Code, 1860: 304B, 306, 498A, 34
- Constitution of India: Article 227
