Case Note & Summary
The petitioner, Wasudeo Gulabrao Dhoke, was the accused in Sessions Trial No. 94/2014 for an offence under Section 302 of the Indian Penal Code. He filed an application under Section 311 of the Code of Criminal Procedure, 1973 (CrPC) before the Sessions Judge, Wardha, seeking to recall two prosecution witnesses, PW 3 and PW 7, for further cross-examination. The Sessions Judge rejected the application on 24 June 2016, holding that the accused had the opportunity to put necessary questions to these witnesses during cross-examination but failed to do so, and that recalling them would amount to filling up a lacuna in the defence. The accused then approached the Bombay High Court (Nagpur Bench) challenging this order. The High Court heard the parties. The accused's counsel argued that the application was not to fill a lacuna but to correct an error made during cross-examination, and that no prejudice would be caused to the prosecution if the witnesses were recalled for a limited purpose. The State opposed, contending that the order was correct and that recalling witnesses to put questions that could have been asked earlier would amount to filling a lacuna. The High Court, after considering the submissions and the case law cited (Natasha Singh v. CBI and Mannan Shaikh v. State of West Bengal), held that the power under Section 311 CrPC must be exercised to advance a just decision. The court noted that the accused had filed a pursis specifying the questions and suggestions to be put to the witnesses, and that recalling them for that limited purpose would not cause prejudice to the prosecution. The High Court distinguished the present case from Mannan Shaikh, where the application was made after the defence evidence was closed, whereas here the trial was still ongoing. The court also observed that the trial court's view that the opportunity was wasted was not correct, as the accused had not deliberately omitted the questions but had made an error. Accordingly, the High Court allowed the application, set aside the impugned order, and directed the Sessions Judge to recall PW 3 and PW 7 for further cross-examination on the specific questions and suggestions mentioned in the pursis, with the accused to pay costs of Rs. 500 to each witness.
Headnote
A) Criminal Procedure - Recall of Witnesses - Section 311 CrPC - Correction of Error vs. Filling Lacuna - The accused sought recall of PW 3 and PW 7 for further cross-examination, which was rejected by the Sessions Judge on the ground that it would fill a lacuna in defence. The High Court held that the application was not to fill a lacuna but to correct an error that occurred during cross-examination, and that no prejudice would be caused to the prosecution. The court allowed the recall for limited purpose of putting specific questions and suggestions as per the pursis filed. (Paras 4-10) B) Criminal Procedure - Just Decision - Section 311 CrPC - The power under Section 311 CrPC must be exercised to advance a just decision, and the court should not adopt a hypertechnical approach. The High Court emphasized that the trial court's view that the opportunity was wasted was not correct, as the accused had not deliberately omitted the questions but had made an error. (Paras 8-10)
Issue of Consideration
Whether an application under Section 311 CrPC for recalling witnesses for further cross-examination should be allowed when the accused failed to put certain questions earlier, or whether it amounts to filling up a lacuna in defence.
Final Decision
The High Court allowed the application, set aside the impugned order dated 24.6.2016, and directed the Sessions Judge to recall PW 3 and PW 7 for further cross-examination limited to the questions and suggestions mentioned in the pursis filed by the applicant. The applicant was directed to pay costs of Rs. 500 to each witness.
Law Points
- Section 311 CrPC
- recall of witnesses
- filling lacuna
- correction of error
- just decision
