This Criminal Original petition has been filed to set aside the order passed in Cr.M.P.1758 of 2017 in C.C.No.79 of 2016 dated 13.06.2017 on the file of the Fast Track Court (Judicial Magistrate Court) Palani to recall PW-
2.Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
3.The petitioner is the accused in C.C.No.79 of 2016 on the file of the Fast Track Court (Judicial Magistrate Court) Palani, for the offences punishable under Section 138 of Negotiable Instrument Act. It is not in dispute that the petitioner was given an opportunity to cross examine the witnesses elaborately. However, on the ground that the petitioner want to cross examine PW-1 again, Cr.M.P.1758 of 2017 in C.C.No.79 of 2016 was filed to recall PW-1, so as to cross examine him. This petition was dismissed by the Trial Court on the ground that there is no specific averments in the petition filed by the petitioner assigning reasons to recall the witness / PW-1. Challenging the said order, the above criminal original petition is filed.
4.The learned counsel for petitioner relied upon a judgment of this Court in the case of R.Chandrasekaran vs. Additional Superintendent of Police, in Crl.OP.No.6141 of 2016. This Court has observed that while considering the petition under
Section 311 of Cr.P.C., the Trial Court should not carried away merely because of failure of furnishing the details of his line of cross examination in the petition to recall. It was further observed that the Court is required to keep in its mind the apprehension of the prosecution that it should not be a licence to defence to prevent the completion of recording of prosecution evidence. Since, the only reason given by the Trial Court was that the reason to recall was not specifically stated, the learned counsel for the petitioner submitted that the order challenged in this petition cannot be sustained.
5.However the learned counsel for the respondent has stoutly opposed this petition. It is the contention of the learned counsel for respondent that the cross examination of PW-1 was done elaborately by the petitioner and that the petition under Section 311 was filed after completion of evidence and the matter was posted for arguments. It is the apprehension of the learned counsel for the respondent that the object behind filing this petition at the stage of argument is only to fill up the lacunae and that there is no bona fide in this petition.
6.The learned counsel for the respondent relied upon a judgment of Honourable Supreme Court in the case of State (NCT of Delhi) vs Shiv Kumar Yadav and another reported in (2016) 1 SCC (Cri) 510, The Honourable Supreme Court after elaborate dealing with the case of facts had observed as follows:
....?28. It will also be pertinent to mention that power of judicial superintendence under
Article 227 of the Constitution and under
Section 482 Cr.P.C. has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court[47]*. A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order.
29. We may now sum up our reasons for disapproving the view of the High Court in the present case:
(i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross- examination. They were under no handicap;
(ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at back of such counsel;
(iii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice;
(iv) The trial Court as well as the High Court rejected the reasons for recall of the witnesses;
(v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed;
(vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial;
(vii) Mere change of counsel cannot be ground to recall the witnesses;
(viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled;
(ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall, i.e., denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings;
(x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted?.......
7.The learned counsel for the respondents further relied upon a judgment of this Court in the case of M/s.Sree Harshi Infoway Private Ltd and another vs M/s.Duralyst Energy Pvt., Ltd., in Crl.O.P.No.9683 of 2016. The learned single Judge of this Court, has observed that though, accused need not reveal his defence, but nevertheless, the accused must make out a case for the Trial Court to exercise its power under
Section 311 of Cr.P.C for recalling the witness, who has already been subjected to cross examination.
8.In this case, the question is whether the petitioner's application to recall the PW-1 is sustainable on merits. It is of course, the petitioner has not stated the reason for further cross examining PW-1. The lower Court also dismissed the application only on the ground that there is no specific averments with regard to the reason for recalling the witnesses PW-1 in the petition.
9.This Court, accept the proposition that the discretionary power vested with the Court should be exercised to advance the justice. The Trial Court in this case, for some reasons dismissed the petition and the question is whether the discretionary power had been properly exercised or not. This Court time and again has held that reasonable opportunity should be given to the accused, especially for defending the criminal case. Having regard to the principle on the basis of which, this Court and Hon'ble Supreme Court have reiterated the standard of proof required in Criminal Case, this Court is of the view that fairest opportunity should be given to the accused in criminal case. In view of the position, this Court is inclined to allow the petition, so as to enable the petitioner to get one more opportunity to cross-examine PW1 subject to terms. Hence, the Criminal Original Petition is allowed. The order of learned Fast Track Court (Judicial Magistrate Court), Palani, in Cr.M.P.1758 of 2017 in C.C.No.79 of 2016 is set aside and application filed by the petitioner in Cr.M.P.1758 of 2017 in C.C.No.79 of 2016 stands allowed. However this order is subject to payment of a cost of Rs.5,000/- to the respondent. The petitioner is directed to avail the opportunity of cross-examining PW-1, on the date when the witness / PW-1 is available without asking further adjournment.
8.Accordingly, the Criminal Original petition is allowed.
To The Fast Track Court (Judicial Magistrate Court), Palani.
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