Madhya Pradesh High Court: While dismissing an application filed under Section 482 of the Criminal Procedure Code, 1973 (CrPC) challenging trial court’s order rejecting applicant’s application to recall the prosecutrix for further cross-examination, a single-judge bench of Dinesh Kumar Paliwal, J., upheld the trial court’s decision to reject the request for recalling the prosecutrix for further cross-examination was correct and in accordance with the law. The Court held that
“An application under Section 311 of CrPC cannot be allowed to fill up the lacuna of prosecution or defence case and no prosecution witness can be called for examination/cross-examination merely because he/she filed affidavit contrary to his deposition made before the trial Court.”
In the instant matter, the applicant filed an application challenging the order dated 15-05-2023 passed by the Additional Sessions Judge, rejecting applicant’s application under Section 311 CrPC to recall the prosecutrix for further cross-examination. The applicant sought to recall the prosecutrix on the grounds that she filed an affidavit after her initial testimony, which allegedly contained important information that was not addressed during her cross-examination. The main issues in the present case are —
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Whether the trial court erred in rejecting the application under Section 311 CrPC for recalling the prosecutrix for further cross-examination?
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Whether the recall of a witness can be justified based on an affidavit filed after the witness’s initial testimony?
The applicant argued that the trial court failed to apply judicial mind and wrongly rejected the application under Section 311 CrPC. It was contended that the prosecutrix’s affidavit filed after her testimony necessitated further cross-examination to address new facts that were not covered previously. The applicant further claimed that recalling the prosecutrix was necessary to ensure a fair trial.
However, the State opposed the application and argued that the prosecutrix had already been fully examined and cross-examined. The State contended that allowing the recall of the witness based on a later-filed affidavit would be inappropriate, as it would effectively permit the applicant to fill in gaps or lacunas in the defence case. The State further asserted that the request to recall the prosecutrix was an attempt to undermine her initial testimony and should not be allowed.
The Court noted that Section 311 CrPC allows the court to recall a witness if it is essential for a just decision of the case, but such power must be exercised judiciously and with caution. The Court referred to Raja Ram Prasad v. State of Bihar, (2013) 14 SCC 461 and State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402, and emphasised that recalling a witness should be justified by strong and valid reasons and not merely for convenience or to fill in gaps in the evidence.
“Unfair advantage cannot be given to any of the parties and no one can be permitted to recall the prosecutrix for further cross-examination merely on the ground that she has filed affidavit after her deposition.”
The Court held that the prosecutrix was thoroughly examined and cross-examined, and the affidavit filed after her testimony did not justify recalling her for further cross-examination. The Court emphasised that Section 311 CrPC cannot be used to fill in gaps in the defence’s case or to harass the witness by repeatedly calling her for cross-examination.
“An 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 lacuna by moving an application that some questions could not be put to the prosecutrix in her cross-examination or after her deposition before the trial Court she has denied from the commission of incident.”
The Court found the application to be without merit and held that no error can be identified in the trial court’s order. The Court dismissed the application under Section 482 CrPC and upheld the trial court’s order rejecting applicant’s application to recall the prosecutrix for further cross-examination
[Rajkumar Ahirwar v. State of M.P., 2024 SCC OnLine MP 5370, Decided on 20-08-2024]
Advocates who appeared in this case :
Shri L.C. Chourasiya, Counsel for the Applicant
Shri Manoj Kushwaha, Counsel for the Respondent/State
Buy Code of Criminal Procedure, 1973 HERE
