The Lucknow Bench of the Allahabad High Court while dismissing an application said that it is correct Under Section 311 CrPC confers wide powers on the court to summon any witness at any stage of the enquiry, trial or other proceeding but that power has to be exercised only when it is essential for just decision of the case.
A Single Bench of Justice Subhash Vidyarthi passed this order while hearing an application under section 482 filed by Haribhan Singh.
By means of the application the applicant has challenged the validity of an order dated 22.12.2023, passed by the Additional District and Sessions Judge/Special Judge, E.C Act, Sultanpur in Sessions Trial under Sections 147, 148, 149, 504, 506, 307, 302 I.P.C Police Station Jamo, District Amethi, whereby the application filed by the applicant and another co-accused Ram Nath Singh under Section 311 Cr.P.C for recall of prosecution witness for being cross-examined by them has been rejected.
The application under Section 311 Cr.P.C was filed on the ground that the accused Deependra Singh was summoned to face trial under Section 319 Cr.P.C after prosecution witness was reexamined and he was cross-examined on behalf of the newly added accused Deependra Singh. However, the other accused person did not cross-examine the said witness after his recall.
It was stated in the application that after a person is summoned as an accused under Section 319 Cr.P.C the trial starts de novo and therefore all the accused persons have the right to cross-examine him. The trial court rejected the application without taking into consideration the fact that after the prosecution witness was examined by the prosecution the counsel for the applicant had cross examined him and the record of cross examination runs into 17 pages.
The said witness was cross-examined by other co-accused Ram Nath Singh also and that cross-examination runs into 7 pages. Deependra Singh was summoned to face trial under Section 319 Cr.P.C after the prosecution witness had been examined. In these circumstances there is no ground for recalling the prosecution witness for being cross-examined by the accused person, on whose behalf he has already been cross-examined extensively.
Per contra, the A.G.A-I has submitted that the prosecution witness was recalled for being examined after the witness Deependra Singh was summoned to face trial under Section 319 CrPC. As per the provisions contained in Section 319 (4) Cr.P.C the proceedings can commence afresh only against the accused who has been summoned under Section 319 Cr.P.C and not against all the accused persons. In these circumstances, only the accused who has been summoned under Section 319 Cr.P.C has a right to cross-examine the witness and the persons who were accused since before and who had already availed the opportunity of cross-examining the witness, have no right to cross-examine the witness again.
The Court observed that a bare reading of Section 319 (4) Cr.P.C indicates that where a person is summoned under Section 319 (1) to face the trial, the proceedings shall be commenced afresh and the witnesses re-heard only in respect of such person and not in respect of all the accused persons. Therefore, the applicant having been an accused since inception of the trial and he already having cross examined the prosecution witness, he has no right to recall prosecution witness for cross examining him again after he was re-examined by the prosecution consequent to another accused being summoned under Section 319 CrPC.
“In these circumstances, the applicant has no right to seek further cross-examination of prosecution witnesses and such cross-examination is not at all essential for just decision of the case. There appears to be no illegality in the impugned order”, the Court further observed while dismissing the petition.