In a significant order, the Allahabad High Court allowed an application for recall of witness moved by an accused under Section 311 of CrPC, while holding that the same is a matter of right, when it comes to proper appreciation of the prosecution evidence.
"There can be no dispute that the accused has a right to summon any evidence/witness which may be relevant for proper appreciation of the prosecution evidence and to substantiate his defence, therefore, in any case when the mobile and pen drive have already been exhibited in the record, then, recall of the injured witness appears to be necessary for his re-examination by the defence on the question of that video clip," the Single Bench of Justice Rajiv Joshi held.
The power to summon material witness, or examine person present under Section 311 of CrPC stipulates that 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.
The Court noted that it is settled law that the power of recall has to be exercised with "caution and circumspection" and reasons for exercising this power should be spelt out in the order.
"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," the Supreme Court had held in State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016) 2 SCC 402.
In the case at hand, the Court observed, it was essential to recall the witness, as sought for by the Applicant, so he may be re-examined in light of the video clip produced by the applicant during Defence Evidence.
The Court took note of the Applicant's submission that the accused had the opportunity to produce the video clip under Section 233 of CrPC, only after recording of statement under Section 313 CrPC, and not before that. Therefore, further examination of the witness in question was necessary for the purpose of confronting his statement contained in the video clip in which he had disclosed the names of actual accused persons, who had committed the offence.
The Court observed that the Trial Court was in error in rejecting the Applicant's application for bail on the ground that the application has been moved just to delay the trial.
"When the accused-applicant is in jail, therefore, there is also no occasion to delay the proceeding of the trial," the Bench said.
It further observed,
"So far as the observation made by the trial court that the said application is without the list of questionnaire is concerned, it is firstly stated that there is no requirement under the law to file questionnaire along with the application for recalling the witness and secondly that it is clearly mentioned in the application under section 311,Cr.P.C. itself that injured witness P.W.-5 Nitin is to be summoned with regard to the contents of his video clip."
Accordingly, the Court directed the Trial Court to recall the witness in question, at an early date.
The Application in this case was accused under Section 302, 307, 201, 376D, 394, 411 and 120 IPC and section ¾ POCSO Act, 2012, for rape and murder of a minor girl and for causing injury to her brother.
Case Title: Amarjeet @ Kaluwa v. State of UP & Anr.