1. The petitioners are before this Court calling in question an order dated 21.06.2022 passed in Spl.C.No.17/2016 rejecting the application filed by the petitioners under Section 311 of the Cr.P.C. seeking recall of PW.3 for cross-examination.

2. Heard Sri. Jayaraj D.B., learned counsel appearing for the petitioners and Sri. K.S. Abhijith, learned HCGP, appearing for the respondent.

3. Brief facts that leads the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows:

On 14.10.2018, one Smt. Kamala registers a complaint before the jurisdictional police, which becomes a crime in Crime No.397/2015 for offences punishable under Sections 143, 448, 323, 324, 506, 149 of the IPC and Sections 3(1), (1) and (11) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

3.1. The proceedings have since then gone on before the Special Court. The issue is not with regard to merit of the matter. The petitioners in the course of the trial on 08.04.2022 file an application under Section 231 of the Cr.P.C. to defer the cross-examination of PW.3. No order was passed on the said application and the crossexamination of PW.3 was taken as 'nil' on that ground that the petitioners file an application under Section 311 of the Cr.P.C. seeking recall of PW.3 for cross-examination, as she has not been cross-examined at all, in the light of her cross-examination being taken as 'nil'. The concerned Court, by its order dated 21.06.2022, rejects the application on the ground that PW.3 is 80 years old and she is unable to stand properly. Therefore, the crossexamination is not allowed. It is this order that is called in question by the petitioners in the subject petition.

4. Learned counsel appearing for the petitioners submits that the cross-examination of PW.3 is imperative in the light of the allegation so made, as the offences punishable are grave in nature. In the application, the petitioners have narrated in detail as to why crossexamination of PW.3 was necessary.

5. Learned HCGP would however submit that since PW.3 is 80 years old and she cannot be repeatedly called for cross-examination, the petition be dismissed affirming the order passed by the concerned Court.

6. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.

7. The afore-narrated facts are not in dispute. PW.3 is a witness that was sought to be brought in for cross-examination on 08.04.2022. An application is filed by the petitioners on the same date under Section 231(2) of the Cr.P.C. for deferring cross-examination. The concerned Court did not pass an order on the said application, but passed the following order on 08.04.2022:

"The PW.3 is 80 years old woman, she is unable to stand properly. PW.3 submits that her back is already injured. She is the senior citizen, application u/sec 231(2) is not allowed so far. PW.1 and 2 have been deferred for cross examination on request. Hence, the cross examination of PW.3 is taken as nil.

CW.4 called out absent. Reissue NBW to CW.4 with direction 30.05.2022."

8. It is after this the petitioners file an application under Section 311of the Cr.P.C. seeking recalling of PW.3, as she was never cross-examined in the case. The concerned Court again by the order impugned, rejects the application by the following order:

"Counsel for accused files application u/sec 311 of Cr.P.C. to recall PW.3 for cross examination. SPP opposes orally.

Heard counsel for accused.

The reasons for taking the cross examination of PW.3 as nil holds good even as on this day. Hence, for very same reason the application filed u/sec 311 of Cr.P.C. to recall PW.3 for her cross examination is rejected.

For FDT by 22.07.2022."

9. The order rejecting the application filed under Section 311 of the Cr.P.C. to recall PW.3 for crossexamination is by a perfunctory order, as is noticed hereinabove.

10. Section 311 of the Cr.P.C. mandates that any stage of the proceedings, a witness can be recalled for cross-examination or for further cross-examination, as discovery of truth is the soul of criminal trial. Therefore, the application under Section 311 of the Cr.P.C., except in cases where it becomes an abuse of the process of the law, should ordinarily be allowed. In the case at hand, PW.3 has not been offered for cross-examination at all. It cannot become a case where the petitioners are not permitted to cross-examine a particular witness in a trial for grave offences. The Apex Court in the case of VARSHA GARG V. STATE OF MADHYA PRADESH AND OTHERS 2022 SCC OnLine SC 986 , has held as follows:

“31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court “may”:

(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and

(ii) Recall and re-examine any person who has already been examined.

32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court “shall” summon and examine or recall and re-examine any such person “if his evidence appears to the Court to be essential to the just decision of the case”. Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.

33. The first part of the statutory provision which uses the expression “may” postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression “shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case”. Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.

34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed:

16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision — either discretionary or mandatory — depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice.”

35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the “evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means.” In that context the Court observed:

“18 …Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.”

36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P.19, State of W.B. v. Tulsidas Mundhra20 , Jamatraj Kewalji Govani v. State of Maharashtra21, Masalti v. State of U.P.22, Rajeswar Prosad Misra v. State of W.B.23 and R.B. Mithani v. State of Maharashtra24, the Court held:

“27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.”

37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.

In the light of the facts obtaining in the case at hand and the judgment rendered by the Apex Court in the case of VARSHA GARG (supra), I deem it appropriate to grant one opportunity to the petitioners to cross-examine PW.3 with the condition that the means of travel, cost of travel of the said witness shall be borne by the accused. The concerned Court shall fix the amount to be paid by the accused well before the said date for cross-examination.

11. For the aforesaid reasons, the following:

ORDER

I. Criminal Petition is allowed.

II. The application filed by the petitioners under Section 311 of the Cr.P.C. is allowed.

III. The concerned Court shall fix a date for such cross-examination of PW.3 and the petitioners shall cross-examine PW.3 on the same date and conclude, without seeking any adjournment. Any adjournment sought, would mean that the petitioners have lost their right for crossexamining PW.3.

It shall be subject to condition observed in the course of the order.