Case Note & Summary
The petitioner, accused No.1 in a criminal trial for offences under Sections 294, 323, and 506(B) read with 34 of the Indian Penal Code, filed a writ petition challenging the order dated 2.5.2017 passed by the Judicial Magistrate First Class, Nagpur, rejecting his application for recalling a prosecution witness for further cross-examination. The petitioner contended that during cross-examination, due to inadvertence, certain questions could not be put to the witness. The application, filed on 12.01.2017, stated that the witness had claimed not to know the accused in examination-in-chief but also identified the persons who assaulted her. The Magistrate rejected the application on the ground that the petitioner had an opportunity to cross-examine and that the application was filed after a long delay. The High Court, after hearing both sides, observed that the Magistrate ought to have exercised discretion under Section 311 of the Code of Criminal Procedure, 1973 liberally to ensure a fair trial. The court noted that the ground of inadvertence was sufficient and that the petitioner should not be penalized for the counsel's mistake. The High Court set aside the Magistrate's order and allowed the application for recalling the witness, subject to payment of costs of Rs. 1,000/- to the respondent-State. The court directed the Magistrate to fix a date for cross-examination and complete the same within two months.
Headnote
A) Criminal Procedure - Recalling of Witness - Section 311 CrPC - Inadvertence - The petitioner, facing trial for offences under Sections 294, 323, 506(B) read with 34 IPC, sought to recall a prosecution witness for further cross-examination due to inadvertence. The Magistrate rejected the application. The High Court held that the Magistrate ought to have exercised discretion liberally to ensure a fair trial and that the ground of inadvertence was sufficient. The order was set aside and the witness was allowed to be recalled subject to payment of costs of Rs. 1,000/-. (Paras 3-6)
Issue of Consideration
Whether the Magistrate was justified in rejecting the application for recalling a witness for further cross-examination on the ground of inadvertence.
Final Decision
The High Court allowed the petition, set aside the order dated 2.5.2017 passed by the Judicial Magistrate First Class, Nagpur, and allowed the application for recalling the witness for further cross-examination, subject to payment of costs of Rs. 1,000/- to the respondent-State. The Magistrate was directed to fix a date for cross-examination and complete the same within two months.
Law Points
- Recalling of witness for further cross-examination
- Inadvertence as ground for recalling
- Discretion of Magistrate under Section 311 CrPC
- Right to fair trial
- Opportunity to cross-examine
