In a significant ruling, the Madhya Pradesh High Court, presided over by Justice Dinesh Kumar Paliwal, has reinforced the principle that witnesses cannot be recalled for cross-examination without compelling and substantial reasons. The decision was rendered in the matter of Rajkumar Ahirwar vs. The State of Madhya Pradesh (Misc. Criminal Case No. 46462 of 2023), where the court dismissed an application seeking to recall a key witness in a criminal trial.
Background of the Case
The petitioner, Rajkumar Ahirwar, is the accused in a criminal case (S.T. No. 212/2022) pending before the 3rd Additional Sessions Judge (ASJ) in Sehore, Madhya Pradesh. The case revolves around serious allegations made by the prosecutrix, who initially supported the prosecution’s narrative in her FIR and subsequent statements recorded under Sections 161 and 164 of the Criminal Procedure Code (Cr.P.C.).
However, after her testimony and cross-examination were concluded, the prosecutrix filed an affidavit contradicting her earlier statements, prompting the defense to file an application under Section 311 of Cr.P.C., seeking her recall for further cross-examination. The defense argued that important questions were left out during the initial cross-examination and that the new affidavit warranted a re-examination of the witness.
Legal Issues Involved
The primary legal issue in this case was whether the application for recalling the witness under Section 311 of Cr.P.C. could be justified based on the subsequent affidavit filed by the prosecutrix, contradicting her earlier testimony. The defense contended that recalling the witness was essential to ensure a fair trial, while the prosecution opposed the application, arguing that it was an attempt to fill gaps in the defense’s case and to discredit the witness’s previous testimony.
Court’s Decision
Justice Paliwal, after carefully considering the submissions of both parties, upheld the trial court’s decision to reject the application for recalling the witness. The court emphasized that the power under Section 311 of Cr.P.C. should be exercised judiciously and only for strong and valid reasons, aimed at serving the ends of justice. Mere inconvenience or a desire to rectify oversights in cross-examination does not constitute sufficient grounds to recall a witness.
The court quoted previous judgments, including Raja Ram Prasad vs. State of Bihar and State (NCT of Delhi) vs. Shiv Kumar Yadav, highlighting that the recall of witnesses must be approached with caution and should not be allowed unless it is crucial for a just decision in the case. The court also cited the Supreme Court’s observation that the provision should not be used to enable parties to fill in gaps in their case, particularly when such recall could lead to the harassment of the witness.
Key Observations of the Court
In his order, Justice Paliwal made several key observations:
– “The nature and scope of power exercised under Section 311 Cr.P.C. must be invoked only in order to meet the ends of justice for strong and valid reasons and must be exercised with care, caution, and circumspection.”
– “It is a settled position of law that an application under Section 311 of Cr.P.C. cannot be allowed merely because some questions could not be put to the witness in their lengthy cross-examination.”
– “No witness can be recalled for further cross-examination without valid and strong reasons, especially when the prosecutrix has already been examined and cross-examined fully.”
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The court further noted that allowing the recall of the prosecutrix solely based on her affidavit filed after her cross-examination would set a dangerous precedent, allowing the accused to potentially harass witnesses by repeatedly calling them for examination.
Parties Involved:
– Applicant/Accused: Rajkumar Ahirwar
– Respondent: The State of Madhya Pradesh
– Counsel for Applicant: Shri L.C. Chourasiya
– Counsel for Respondent: Shri Manoj Kushwaha (Panel Lawyer)
