High Court dismissed an application challenging the dismissal of a Section 311 Cr.P.C. prayer to recall witnesses. The Court held witnesses cannot be recalled merely to fill lacunae caused by failure to ask questions due to mistake.
Application to quash order under Section 311 Cr.P.C. dismissed; underlying order upheld.
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Court No. - 91
Case :- APPLICATION U/S 482 No. - 15396 of 2021
Applicant :- Shyam Sundr And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Garun Pal Singh Counsel for Opposite Party :- G.A.
Hon'ble Sameer Jain,J.
Heard Sri Amit Rai, Advocate holding brief of Sri Garun Pal Singh, learned counsel for the applicants, Sri Arvind Kumar, learned AGA for the State and perused the record of the case.
By way of present application, applicants made prayer to quash the order dated 08.03.2021 passed by Additional Session Judge, Court No.1, Mathura and proceedings of Sessions Trial No. 347 of 2009 (State Vs. Shyam Sundar and others) arising out of Case Crime No.92 of 2009, under Section 302 IPC, Police Station Vrindavan, District Mathura.
Learned counsel for the applicants submitted that applicants are the accused in the murder case and they moved application under Section 311 Cr.P.C. to recall PW-1 and PW-2 as, due to mistake, certain specific questions from these witnesses could not be asked in cross-examination, but in spite of that court below on 08.03.2021 dismissed their application, therefore, committed an error of law. He further submitted that applicants in their application, framed five specific questions, but court below only on the ground that application was moved by the applicants only with intention to further linger on the proceedings of the case, dismissed the application, therefore, order dated 08.03.2021 is bad.
Per contra, learned AGA submitted that in the application itself a prayer has been made by the applicants that due to mistake the questions could not be asked from PW-1 and PW-2, therefore, their application moved under Section 311 Cr.P.C. was rightly dismissed by the court below as, a witness under Section 311 Cr.P.C. cannot be recalled to fill up the lacuna, therefore, present application is liable to be dismissed.
I have heard both the parties and perused the record of the case. Applicants are the accused in a murder case, which is pending before the court concerned since 2009 and in the application itself applicants admitted that due to mistake their earlier counsel could not cross examined PW-1 and PW-2 on five facts, which have been mentioned in the application itself. Law to
recall witnesses under Section 311 Cr.P.C. is settled that to fill up the lacuna, a witness cannot be recalled and only a witness can be recalled on the ground that his recall/testimony is necessary to arrive at just decision of the case, which is not in the present case. The only prayer made by the applicants that due to mistake his previous counsel could not cross-examined PW-1 and PW-2, therefore, I find no illegality in the impugned order.
Accordingly, the present application is dismissed .
Order Date :- 31.5.2022 AK Pandey
Digitally signed by ANUPAM KUMAR PANDEY Date: 2022.06.14 18:04:26 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether application under Section 311 Cr.P.C. to recall witnesses for failed cross-examination on mistake is maintainable.
Whether order dismissing such application commits error of law.
3 provisions across 3 enactments
Shyam Sundr And Another
State of U.P.
Sameer Jain
Anupam Kumar Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
