Case Note & Summary
The petitioner, Lawrence Dias, filed a Criminal Writ Petition under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (CrPC) challenging the order dated 07/06/2018 passed by the Sessions Judge, North Goa, Panaji, which dismissed his application under Section 311 CrPC for recall of prosecution witnesses. The petitioner was facing trial for an alleged incident that occurred on the night of 11/11/2014. He claimed that he was bitten by a snake and was treated at a hospital, and that a discharge card would establish his alibi that he was not present at the scene of crime. The petitioner argued that his earlier advocate had not properly conducted the cross-examination, causing serious prejudice to his defence, and that recall of witnesses was necessary to confront them with the discharge card. The State opposed the application, contending that the petitioner had the opportunity to cross-examine the witnesses earlier and that the discharge card was available at that time. The court, after hearing both sides, held that the power under Section 311 CrPC is not intended to enable a party to fill gaps in its defence or to remedy the negligence of its advocate. The court found no miscarriage of justice as the petitioner had the opportunity to cross-examine the witnesses and the discharge card was in his possession. The petition was dismissed, and the order of the Sessions Court was upheld.
Headnote
A) Criminal Procedure - Recall of Witnesses - Section 311 CrPC - Ineffective Cross-Examination - The petitioner sought recall of prosecution witnesses to confront them with a discharge card, alleging that his earlier advocate failed to conduct proper cross-examination. The court held that the power under Section 311 CrPC is not intended to enable a party to fill gaps in its defence or to remedy the negligence of its advocate. The application was dismissed as the petitioner had the opportunity to cross-examine the witnesses earlier and the discharge card was available at that time. (Paras 4-6)
B) Criminal Procedure - Recall of Witnesses - Section 311 CrPC - Miscarriage of Justice - The court considered whether denial of recall would lead to miscarriage of justice. It held that the petitioner's own failure to produce the discharge card during cross-examination does not constitute a miscarriage of justice warranting recall. The court emphasized that the power under Section 311 CrPC must be exercised sparingly and only to meet the ends of justice. (Paras 5-6)
Issue of Consideration
Whether the Sessions Court erred in dismissing the petitioner's application under Section 311 CrPC for recall of prosecution witnesses on the ground that the earlier cross-examination was ineffective due to the advocate's negligence.
Final Decision
The petition is dismissed. The order dated 07/06/2018 of the Sessions Judge, North Goa, Panaji, dismissing the application under Section 311 CrPC is upheld.
Law Points
- Section 311 CrPC
- recall of witnesses
- ineffective cross-examination
- miscarriage of justice
- power of court to summon material witness
Case Details
2018 LawText (BOM) (12) 180
Criminal Writ Petition No. 155 of 2018
Shri Vithal Naik h/f. Shri V. Rodrigues (for petitioner), Shri S.R. Rivankar (Public Prosecutor for respondent)
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Nature of Litigation
Criminal Writ Petition challenging the dismissal of an application under Section 311 CrPC for recall of prosecution witnesses.
Remedy Sought
The petitioner sought to set aside the order dated 07/06/2018 of the Sessions Court and to allow his application for recall of witnesses under Section 311 CrPC.
Filing Reason
The petitioner's application for recall of witnesses was dismissed by the Sessions Court, and he challenged that order by invoking Article 227 of the Constitution and Section 482 CrPC.
Previous Decisions
The Sessions Court, North Goa, Panaji, by order dated 07/06/2018, dismissed the petitioner's application under Section 311 CrPC for recall of prosecution witnesses.
Issues
Whether the Sessions Court erred in dismissing the application under Section 311 CrPC for recall of witnesses on the ground of ineffective cross-examination by the earlier advocate.
Whether the denial of recall would lead to a miscarriage of justice.
Submissions/Arguments
Petitioner's counsel argued that the earlier advocate did not properly conduct cross-examination, prejudicing the defence, and that recall was necessary to confront witnesses with the discharge card establishing alibi. Reliance placed on P. Sanjeeva Rao v. State of Andhra Pradesh.
State's counsel contended that the petitioner had the opportunity to cross-examine witnesses earlier and the discharge card was available; recall would subject medical professionals to humiliation.
Ratio Decidendi
The power under Section 311 CrPC is not intended to enable a party to fill gaps in its defence or to remedy the negligence of its advocate. The petitioner had the opportunity to cross-examine the witnesses and the discharge card was available at that time; therefore, no miscarriage of justice arises from the denial of recall.
Judgment Excerpts
This petition takes exception to the order dated 07/06/2018 passed by the Court of the Sessions Judge, North Goa Panaji pursuant to which the application of the petitioner for recall of the witnesses under Section 311 Cr.P.C. has been dismissed.
The petitioner would be seriously prejudiced in case this opportunity was denied to him.
There was no basis to allow the application for the recall of the prosecution witnesses who were medical professionals and subjected to gross humiliation and misbehavior at the instance of the petitioner who had taken law in his hand.
Procedural History
The petitioner filed an application under Section 311 CrPC before the Sessions Court, North Goa, Panaji, which was dismissed on 07/06/2018. The petitioner then filed the present Criminal Writ Petition under Article 227 of the Constitution and Section 482 CrPC before the High Court of Bombay at Goa, which was heard and decided on 11/12/2018.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): Section 311, Section 482
- Constitution of India: Article 227
