Sakri, District Bilaspur (C.G.) v. State Of Chhattisgarh Through Station House Officer, Police Stati
Case Details
2025:CGHC:15539 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1156 of 2025 Jamuna Prasad Anant S/o Janak Ram Anant Aged About 52 Years R/o Village- Pendri, Police Station-Sakri, District Bilaspur (C.G.) ... Petitioner versus State Of Chhattisgarh Through Station House Officer, Police Station Sakri, District Bilaspur (C.G.) ... Respondent (Cause title is taken from the CIS) ------------------------------------------------------------------------------------------------------------------ For Petitioner : Shri Dharmesh Shrivastava, Advocate For Respondent/State ------------------------------------------------------------------------------------------------------------------ : Ms Laxmeen Kashyap, PL Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 02.04.2025 1. This petition has been filed by the petitioner under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) against the impugned order dated 21.01.2025, passed by the learned 8th Additional Sessions Judge, Bilaspur, District-Bilaspur (Annexure A1) in Sessions Case No.95 of 2023, registered at Police Station Sakri, District-Bilaspur, whereby the application filed by the petitioner under Section 311 of the CrPC has been rejected. 2.
Facts
Brief facts of the case are that the petitioner is accused in Crime No.48 of 2023, registered at Police Station-Sakri, Bilaspur under Section Crmp 1156 of 2025 2 302 and 307 of the IPC, and facing trial of Session case No.95 of 2023 before the learned trial Court. During the trial, the charge has been framed and the witnesses have been examined. 3. On 09.12.2024, petitioner filed an application before the learned trial Court under Section 311 of the CrPC for recalling the witness PW1 and PW2 for their re-cross-examination on the ground that there are certain discrepancies in the evidence of prosecution witnesses PW1, PW2, PW5, and PW7, and to clarify those discrepancies, the said witnesses are required to be re-cross-examined. The application filed by the petitioner has been rejected by the learned trial Court on 21.01.2025 on the ground that the witnesses PW1 and PW2 have already been examined on 01.08.2023, and the petitioner has afforded proper opportunity of their cross-examination, and in the facts and circumstances of the case, their recalling is not warranted. The said order dated 21.01.2025 is under challenge in the present petition. 4.
Legal Reasoning
v. State of Rajasthan, (2007) 14 SCC 711, this Court has held as under:- “38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7- 1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed there against and the High Court Crmp 1156 of 2025 7 also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross- examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed”. 22. Coming to the facts of the present case, PWs 4 and 5 were examined between 29.11.2010 and 11.3.2011. They were cross- examined at length during the said period. During the police investigation and in their evidence, they have supported the prosecution story. The Sessions Judge has recorded a finding that they were not under any pressure while recording their evidence. After a passage of 14 months, they have filed the application for their re-examination on the ground that the statements made by them earlier were under pressure. They have not assigned any reasons for the delay in making application. It is obvious that they had been won over. We do not find any reasons to allow such an application. The Sessions Judge, therefore, was justified in rejecting the application. In our view, High Court was not right in setting aside the said order. ” 9. In Manghi @ Narendra v. State of M.P., (2005) 4 MPLJ 136, the Madhya Pradesh High Court of Madhya Pradesh has held that “once the witness is examined as a prosecution witness, he cannot be recalled for examination/cross-examination, merely because he filed affidavit contrary to his deposition made before the Trial Court”. Unfair advantage cannot be given to any of the parties and no one can be permitted to recall the witness for further re-cross-examination, merely on the ground that there are some discrepancies. Crmp 1156 of 2025 8 10. An application filed under Section 311 of the CrPC cannot be allowed to fill-up the lacunae of prosecution or defence case, and no prosecution witnesses can be recalled for re-cross-examination, merely because there are some discrepancies in the evidence of witnesses, who subsequently examined before the Court. Reason given for recalling of PW1 and PW2 for re-cross-examination is not sufficient to allow the application, and to permit them for their re-cross-examination. 11. It is settled position that opportunity of fair trial has to be given to the accused but it should also be kept in mind that no party can be permitted to fill-up the lacunae by moving an application that some discrepancies are there in the evidence of prosecution, who subsequently examined after the witnesses, who are sought to be recalled by the defence. 12. In view of above, this court does not find any error in the impugned order, and does not inclined to interfere with the same. 13. Accordingly, present petition being devoid of merit, it is hereby dismissed. Sd/- Sd/- (Ravindra Kumar Agrawal) JUDGE padma Digitally signed by V PADMAVATHI Date: 2025.04.24 18:07:31 +0530
Arguments
Learned counsel appearing for the petitioner would submit that PW1 and PW2 were examined on 01.08.2023, whereas, PW5 and PW7 have been examined on 28.10.2023 and 31.10.2023 respectively. There are material contradictions in the evidence of PW1, PW2, PW5 and PW7, which is required to be confronted from the witnesses PW1 and PW2. Their cross-examination is necessary to bring the actual fact on record, and in view of evidence of PW5 and PW7, their re-cross examination is necessary in the case. Therefore, petitioner disclosed in the application Crmp 1156 of 2025 3 as to what are the discrepancies, and on what point they are required to be re-cross-examined. In view of above, petition may be allowed and the impugned order may be set aside. Witnesses PW1 and PW2 may be recalled for their re-cross examination. 5. On the other hand, learned counsel for the State opposes, and would submit that order passed by the learned trial Court is absolutely justified, and to fulfill the lacunae, re-cross examination of the witnesses cannot be permitted. 6. Heard learned counsel for the parties, and perused the material annexed with the petition. 7. From perusal of the document annexed with the petition, it reflects that PW1 and PW2 have been examined on 01.08.2023, whereas, PW5 and PW7 have been examined on 28.10.2023 and 31.10.2023 respectively. It was the submission of learned counsel for the petitioner that there are material discrepancies in the evidence of prosecution witnesses, for which PW1 and PW2 are to be re-cross-examined to clarify the said discrepancies. From perusal of the evidence of PW1 and PW2, it is quite vivid that they have been cross-examined by the defence in detail. There may be some contradictions in the evidence of other witnesses but it cannot be a ground to recall the witnesses, whose evidence have been recorded, only for the purpose of clarification of discrepancies with the witnesses, who have subsequently examined in the Court. The attempt made by the petitioner/accused appears to be an Crmp 1156 of 2025 4 attempt for fulfilling the lacunae. PW1 and PW2 have been examined way back on 01.08.2023, whereas, application for their re-cross examination has been filed on 09.12.2024. 8. In the matter of “Ratan Lal v. Prahlad Jat” (2017) 9 SCC 340, the Hon’ble Supreme Court has held that: “16. That brings us to the next question as to whether the High Court was justified in setting aside the order of the Sessions Judge and allowing the application filed by PWs 4 and 5 for their re-examination. For ready reference Section 311 of the Cr.P.C. is as under: “311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case”. 17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order. Crmp 1156 of 2025 5 18. In Vijay Kumar v. State of Uttar Pradesh and Anr., (2011) 8 SCC 136, this Court while explaining scope and ambit of Section 311 has held as under:- “17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously”. 19. In Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Others, (2006) 3 SCC 374, this Court has considered the concept underlining under Section 311 as under:- “27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the Crmp 1156 of 2025 6 greater is the necessity for application of judicial mind”. 20. In State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016) 2 SCC 402, it was held thus:- “…………… Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined”. 21. The delay in filing the application is one of the important factors which has to explained in the application. In Umar Mohammad & Ors.