Rajul Bhargava, J. - Heard Sri J.P.N. Raj, Advocate, holding brief of Sri Pramod Shukla, learned counsel for the applicants and learned A.G.A. for the State.

2. The present application under Section 482 Cr.P.C. has been filed to set-aside the impugned order dated 6.6.2019 passed by Sessions Judge, Baghpat in S.T. No.403 of 2017 (State vs. Rohit and others), arising out of Case Crime No.122 of 2017, under Sections 147, 148, 149, 302/34 I.P.C., P.S. Baleni, District Baghpat whereby the learned Judge dismissed the application under Section 311 Cr.P.C. to recall PW-1 for cross-examination.

3. Submission of the learned counsel for the applicants is that the learned Sessions Judge has illegally closed the opportunity of cross-examination by the defence on behalf of the applicants vide order dated 19.9.2018 and further the application for recalling the aforesaid order has also been illegally rejected by the learned Judge vide impugned order dated 6.6.2019. Learned counsel has submitted that if the defence is not given proper opportunity to cross-examine PW-1- Mange Ram, who is the first informant of the case, it will cause a serious prejudice to defence case as his testimony would go unrebutted. It is further argued that it is a fundamental right of an accused to have fair trial as envisaged under Article 21 of the Constitution and if the impugned orders are not set-aside then the main object of affording fair trial to accused in the spirit of life and liberty shall be greatly jeopardized. It is further argued that the courts have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the majesty of the law. It is submitted that the powers to recall a witness under Section 311 Cr.P.C. is a very wide and could be exercised for the just decision of a case. The Section 311 Cr.P.C. empowers the Courts to recall material witness at any stage of enquiry or trial, if his evidence appears to it to be essential to the arrival at the just decision of a case.

4. The aforesaid impugned orders passed by the courts below are patently illegal and arbitrary and further no prejudice shall be caused to the prosecution, inasmuch as, the trial is already going on. Therefore, the cross-examination of PW-1, who is the first informant and eye-witness, is absolutely essential to arrive at just decision of the case. There was no wilful default on the parts of the applicants in not cross-examining the PW-1 with any oblique purpose, yet the trial court committed manifest illegality by closing the same vide order dated 19.9.2018.

5. Before, I deal with the arguments raised by learned counsel for the applicants, I may record that the applicants are accused in a broad day light double murder case which according to prosecution took place on 28.7.2017 at 7:30 A.M. The F.I.R. was lodged by PW-1 on the same day at 8:45 A.M. After thorough investigation, charge-sheet was laid against the accused and the case was committed before the sessions court. The trial commenced on denial by the accused and charges were framed on 23.4.2018 under Sections 147, 148, 302/149 I.P.C. Then, 26.6.2018 was fixed for recording of evidence and on that date the examination-in-chief of the first informant/eye-witness Sri Mange Ram was recorded. He narrated the prosecution version and the manner in which the applicants gunned down two persons. However, an adjournment application was moved on behalf of the accused-applicants and the cross-examination was suspended. The court fixed 12.7.2018 on which date PW-1, Mange Ram was present and again an adjournment application was moved on behalf of accused which was allowed with specific direction that on the next date adjournment shall not be allowed. On the next date i.e. 26.7.2018, the witness was not present and the court posted the case for 10.8.2018. However, on 10.8.2018 as the accused could not be produced from the jail before the court the case was adjourned and 24.8.2018 was fixed. On 24.8.2018 PW-1 was present but the advocates had abstained from work due to which cross-examination could not take place. The trial was then fixed for 5.9.2019 and on that date PW-1, Mange Ram was present in the court, yet again an adjournment application was moved on behalf of the accused-applicants and the trial court accommodated them and 19.9.2018 was fixed. On 19.9.2018 the accused were produced from the jail and the witness, Mange Ram was also present, however, an adjournment application was moved on behalf of the accused- Rohit and Billu through their counsels and the learned Judge finding no justification for adjourning the case on that date closed the opportunity for cross-examination of PW-1 after recording reasons the court fixed for 4.10.2018 for recording of remaining evidence.

6. I may record that on 4.10.2018, the first date fixed after closing the opportunity to cross-examine PW-1, no application on behalf of the defence to recall the order dated 19.9.2018 was moved, however, on that date examination-in-chief of PW-2- Manjeet, an eye witness, was recorded who is the son of PW-1. He fully corroborated the statement of PW-1 and the prosecution version contained in the F.I.R. He was also not cross-examined by the defence on that date and the court fixed 14.11.2018 for his cross-examination. On 14.11.2018 the learned Judge waited for the defence counsels till 3:45 P.M. but no one turned up and the court in the interest of justice fixed 3.12.2018. The order-sheet reflects that the PW-2 did not appear before the court on 3.12.2018, 11.12.2018, 21.12.2018, 1.1.2019, 4.1.2019, 17.1.2019 28.1.2019 and the trial was adjourned on account of presiding officer being on leave, the advocates abstained from work, on account of condolences and for non-appearance of PW-2 lingered on and more than a dozen dates were fixed, ultimately PW-2, Manjeet appeared before the court on 28.5.2019 and he was cross-examined by the defence and now the said witness who had supported the prosecution version in his examination-in-chief recorded on 4.10.2018 took a U-turn and resiled from his earlier statement and stated that the names of accused-applicants was disclosed by his father and had witnessed the incident for quite some distance and had only heard the sound of fire. He has stated that he had only seen the accused from their back and not their faces. At that stage, an application was moved by the DGC (criminal) to declare the said witness hostile and be permitted to cross-examine him. The learned DGC cross-examined the said witness. Thereafter, the most glaring fact in the present case is that an application for recalling PW-1 for cross-examination was moved on 3.6.2019 which was ultimately rejected by the learned Sessions Judge on 6.6.2019. The order dated 19.9.2018 remained unchallenged.

7. I have carefully gone through the impugned order passed by the learned Judge and the aforesaid admitted/unrebutted facts as contended in the impugned order as well as from the order-sheet, it is apparent that the applicants who are facing trial in a heinous double murder broad day light case deliberately did not cross-examine PW-1 on several dates probably for the reasons that they were exerting pressure on PW-1 for entering into compromise so that he resiles from his examination-in-chief recorded on 26.6.2018. The trial court despite affording sufficient opportunity to the accused-applicants for cross-examining PW-1, ultimately closed the opportunity for cross-examination on 19.9.2018. I may further record that 4.10.2018 was fixed for recording of remaining evidence and on that date examination-in-chief of PW-2, son of PW-1, an eye witness was recorded in which he has fully supported and corroborated the prosecution version and the statement of PW-1. On that date also no application was moved on behalf of applicants-accused for recalling PW-1 for cross-examination. The eye-witness PW-2 was also not cross-examined on 4.10.2018 and 14.11.2018 and then after 3.12.2018 and subsequent dates the said witness did not appear before the court may be due to fear of accused or he was under coercion to resile from his statement and ultimately he appeared on 28.5.2019. He was cross-examined by the defence and he resiled from his examination-in-chief and, thus, declared hostile by the prosecution. Thereafter, application for recalling PW-1 moved on behalf of applicants on 3.6.2019 makes it crystal clear that when the applicants-accused had succeeded in their evil design to win over PW-2 who appeared before the court on 28.5.2018 and remained absent for more than a dozen dates, the application for recalling PW-1 for cross-examination was moved.

8. I am also of the considered opinion that the mala fide of the accused-applicants is apparent on the face of it as the application for recall of PW-1 for cross-examination was deliberately moved after more than eight months after the cross-examination was closed by the learned Judge.

9. It is well settled by catena of decisions by the Honble Apex Court that the power under Section 311 Cr.P.C. must be exercised with the care, caution and circumspection and only for strong and valid reasons. The recall of a witness already examined should not be a matter of course and discretion given to the court in this regard has to be exercised judicially to prevent failure of justice. 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.

10. The Court is fully conscious of the position that after all the trial is basically for the prisoners/accused and the Court should afford an opportunity to them in the fairest manner possible. At the same time, the Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. Recalling of witnesses has to be applied on the basis of judicially established and accepted principles.

11. In State of Haryana v. Ram Mehar and others, 2016 8 SCC 762 , [LQ/SC/2016/1063] the Honble Supreme Court has observed as under:-

"23. In Bablu Kumar and others v. State of Bihar and another, 2015 8 SCC 787 [LQ/SC/2015/887] the Court referred to the authorities in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC, Rattiram and others v. State of Madhya Pradesh, 2012 4 SCC 516 , [LQ/SC/2012/187] J. Jayalalithaa and others v. State of Karnataka and others, 2014 2 SCC 401 , [LQ/SC/2013/1113] State of Karnataka v. K. Yarappa Reddy, 1999 8 SCC 715 [LQ/SC/1999/963] and other decisions and came to hold that keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. It has been further stated that the law does not countenance a "mock trial". It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. We may note with profit though the context was different, yet the message is writ large. The message is all kinds of individual notions of fair trial have no room"."

"38. At this juncture, we think it apt to state that the exercise of power under Section 311 Cr.P.C. can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words "magnanimous approach" and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance"."

12. The Honble Supreme Court in the case of Mohd. Khalid v. State of West Bengal, 2002 7 SCC 334 [LQ/SC/2002/897] has made a serious observation about adjournment of the case for cross-examination by the defence. In Para 54, it has been held that:-

Before parting with the case, we may point out that the Designated Court deferred the cross-examination of the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in-chief is over, unless compelling reasons arc there, the Trial Court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh and others, 2001 4 SCC 667 [LQ/SC/2001/877] and N.G. Dastane v. Shrikant Shivde, 2001 6 SCC 135 [LQ/SC/2001/1207] . In the case of State of U.P. v. Shambhu Nath Singh and others, 2001 4 SCC 667 , [LQ/SC/2001/877] this Court deprecated the practice of Courts adjourning cases without examination of witnesses when they are in attendance with the following observations:-

9. We make it abundantly clear that if a witness is present in Court he must be examined on that day. The Court must know that most of the witnesses could attend the Court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a said plight in the Trial Courts that witnesses who are called through summons or other processes stand at a doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by every one provided the presiding officer concerned has a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are standard on account of the dimension of his judicial powers, can be a persuading factor for granting such adjournments lavishly, that too in a casual manner.

13. Keeping in view the law laid down by the Honble Apex Court, I may record that on the pretext of alleged failure of justice the applicants-accused cannot be permitted to adopt tactics to win over the witnesses by hook or by crook and ultimately when they succeeded in their evil design to win over the son of PW-1 who had supported the prosecution version on 4.10.2018 and then an application was moved with a mala fide intention and probably the accused-applicants had also won over PW-1, Mange Ram. It is not a case where no opportunity was afforded to the accused to cross-examine the witnesses but the accused-applicants facing trial in a heinous broad day light double murder case have not come up with clean hands and, thus, the court below by a detailed and reasoned order was perfectly justified in rejecting the recall application moved by the applicants for recalling PW-1 after more than eight months.

14. In the present facts and circumstances of the case, this Court while exercising its inherent power under Section 482 Cr.P.C. cannot be oblivious of the fact that the accused cannot be permitted to delay the trial and keep on getting the case adjourned and ultimately they succeed in their goal in winning over the witnesses. I may further record that even PW-2, Manjeet in his cross-examination has not denied the time, place and date of incident and he has only gone to the extent of stating that he had seen the accused from the back and not from the faces and the names of the applicants were disclosed by his father. How much reliance can be placed on the testimony of PW-2 is a matter of appreciation of his evidence by the trial court.

15. The applicants-accused themselves are responsible for leaving the trial judge with no option but to close the cross-examination as sufficient opportunity was afforded to them and the very fact of moving the recall application after more than eight months without it being challenged in any forum till 3.6.2019 speaks volumes of malafides of the applicants and the court cannot permit to recall PW-1 at this stage so that the possibility of his being also won over by the applicants cannot be ruled out. It is a double murder case and cannot be said to be a private dispute between the parties since it affects the society at large and affects the law and public order, such kind of practices cannot be allowed to permeate and permit the accused/applicants to take advantage of their own wrong. Their conduct was not such which may attract the discretionary power of the Court u/s 311 Cr.P.C. for recalling PW-1, Mange Ram for cross-examination.

16. In the light of aforesaid, I do not find any merit in the present application and the trial court has rightly exercised the discretion under Section 311 Cr.P.C. and the present application stands, accordingly, dismissed.

17. However, the trial court is directed to expedite the aforesaid session trial and conclude the same in accordance with law without granting unnecessary adjournments to either of the parties as expeditiously as possible preferably within a period of nine months from the date of production of a certified copy of this order, if there is no legal impediment.

18. Office is directed to communicate the order to the court concerned within a week.