Case Note & Summary
The State of Maharashtra filed a criminal revision application challenging two orders dated 11.08.2011 and 18.08.2011 passed by the Additional Sessions Judge, Parbhani, in Sessions Case No. 116/2010. The respondent, Shrikant Bandu Bhojne, was the sole accused charged with offences under Sections 376 and 366 of the Indian Penal Code (IPC) read with Section 34 IPC. After the victim (PW-1) was examined and cross-examined, the prosecution filed an application to frame an additional charge under Section 417 IPC, which was allowed on 17.08.2011. Subsequently, the prosecution sought recall of PW-1 for re-examination to address the new charge, but the trial court rejected the application on 18.08.2011, citing that the victim had already been cross-examined and that recall would cause delay. The State, aggrieved, invoked the revisional jurisdiction of the High Court. The High Court heard arguments from both sides. The learned APP argued that the trial court erred in rejecting the recall application, as the additional charge necessitated re-examination of the victim. The defence counsel opposed, arguing that the victim had been fully cross-examined and that recall would prejudice the accused. The High Court analyzed the provisions of Section 311 of the Code of Criminal Procedure, 1973 (CrPC), which empowers the court to summon and examine any person as a witness at any stage of the trial if his evidence appears essential to the just decision of the case. The court noted that the trial court had framed the additional charge after the victim's examination, and therefore, the prosecution should have been given an opportunity to re-examine the victim on the new charge. The court held that the trial court's rejection was erroneous and that no prejudice would be caused to the accused, as the defence would have the right to cross-examine. The High Court allowed the revision application, set aside the impugned orders, and directed the trial court to permit the recall and re-examination of PW-1, with the defence being given an opportunity to cross-examine thereafter. The court also directed the trial court to expedite the trial.
Headnote
A) Criminal Procedure Code - Recall of Witness - Section 311 CrPC - Re-examination after additional charge - The prosecution sought recall of the victim (PW-1) for re-examination after an additional charge under Section 417 IPC was framed. The trial court rejected the application on grounds that the victim had already been cross-examined and that recall would cause delay. The High Court held that the trial court's approach was erroneous and that the prosecution must be given a fair opportunity to present its case, especially when the additional charge was framed after the victim's examination. The court allowed the revision and set aside the impugned orders, directing the trial court to permit recall and re-examination of PW-1. (Paras 5-9) B) Criminal Procedure Code - Fair Trial - Opportunity to Prosecution - Section 311 CrPC - The court emphasized that the power under Section 311 CrPC is wide and should be exercised to ensure a fair trial. The rejection of the recall application without considering the need for re-examination in light of the additional charge was held to be improper. The court noted that no prejudice would be caused to the accused as the defence would have opportunity to cross-examine. (Paras 5-9)
Issue of Consideration
Whether the trial court erred in rejecting the prosecution's application for recall and re-examination of the victim (PW-1) after additional charge under Section 417 IPC was framed, and whether such rejection prejudiced the prosecution's case.
Final Decision
The High Court allowed the revision application, set aside the impugned orders dated 11.08.2011 and 18.08.2011, and directed the trial court to permit the recall and re-examination of PW-1, with the defence being given an opportunity to cross-examine thereafter. The trial court was also directed to expedite the trial.
Law Points
- Recall of witness under Section 311 CrPC
- Re-examination of witness
- Fair trial
- Opportunity to prosecution
- Discretion of court
- Prejudice to accused
