Case Note & Summary
The petitioner, Kavita Agrawal, was the accused in a criminal case under Section 138 of the Negotiable Instruments Act, 1881, pending before the Judicial Magistrate (F.C.), Sangamner, in S.C.C. No. 0868 of 2011. The complainant, Mahesh Nagari Sahakari Patsanstha Maryadit, through its Recovery Officer, had filed the complaint alleging dishonour of a cheque. During the trial, the complainant examined one witness. The petitioner filed an application under Section 311 of the Code of Criminal Procedure, 1973 (CrPC) seeking to recall that witness for cross-examination. The trial court rejected the application by order dated 29th June 2017, on the ground that the defence evidence was already closed and the application was filed belatedly. Aggrieved, the petitioner filed a criminal writ petition before the Bombay High Court, Aurangabad Bench. The High Court heard both sides. The petitioner argued that the recall was necessary for effective cross-examination to bring out the truth, and that the power under Section 311 CrPC is wide and can be exercised at any stage. The respondent opposed, stating that the application was filed after closure of defence evidence and was an attempt to delay the proceedings. The High Court, relying on the object of Section 311 CrPC to prevent failure of justice, held that the trial court's order was erroneous. The court noted that the power under Section 311 CrPC can be exercised even after closure of defence evidence if the evidence is essential for a just decision. The High Court allowed the writ petition, set aside the trial court's order, and directed the trial court to recall the witness for cross-examination on the same day or on a date convenient to the court, and to dispose of the case expeditiously.
Headnote
A) Criminal Procedure - Recall of Witness - Section 311 CrPC - The court has wide discretion to summon or recall any witness at any stage if the evidence is essential for a just decision - The accused sought recall of the complainant's witness for effective cross-examination, which was denied by the trial court - Held that the power under Section 311 CrPC can be exercised even after closure of defence evidence to prevent failure of justice - The High Court allowed the petition and set aside the trial court's order, directing recall of the witness for cross-examination (Paras 2-6).
Issue of Consideration
Whether the trial court was justified in rejecting the application under Section 311 of the Code of Criminal Procedure, 1973 filed by the accused to recall the complainant's witness for cross-examination in a case under Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The High Court allowed the writ petition, set aside the trial court's order dated 29th June 2017, and directed the trial court to recall the witness for cross-examination on the same day or on a date convenient to the court, and to dispose of the case expeditiously.
Law Points
- Section 311 CrPC confers wide discretion on court to summon or recall any witness at any stage if evidence is essential for just decision
- recall of witness for effective cross-examination is permissible
- power under Section 311 CrPC can be exercised even after closure of defence evidence
- object of Section 311 CrPC is to prevent failure of justice by enabling court to procure necessary evidence
