Re-calling of Witness on the ground that the erstwhile counsel for the petitioner had omitted to put some important questions to the witnesses at the time of cross examination allowed Criminal Procedure Code, 1973 Section 311 Re calling of Witness – Petitioner already cross examined the witnesses and after very long time the petition is filed to recall and for further cross examination of these witnesses only on the ground that the erstwhile counsel for the petitioner had omitted to put some important questions to the witnesses at the time of cross examination – Application Allowed – Conditions imposed.
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Abdul Saleem v. State, (Madras) : Law Finder Doc Id # 1373767
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MADRAS HIGH COURT
Before:- Mr. N. Anand Venkatesh, J.
Crl.O.P.No. 658 of 2019. D/d. 09.01.2019.
Abdul Saleem – Petitioner
Versus
State represented by, Inspector of Police Station – Respondent
For the Petitioner :- Mr. Ma.Pa. Thangavel, Advocate.
For the Respondent :- Mr. M. Mohamed Riyaz, Additional Public Prosecutor.
IMPORTANT
Re-calling of Witness on the ground that the erstwhile counsel for the petitioner had omitted to put some important questions to the witnesses at the time of cross examination allowed
Criminal Procedure Code, 1973 Section 311 Re calling of Witness – Petitioner already cross examined the witnesses and after very long time the petition is filed to recall and for further cross examination of these witnesses only on the ground that the erstwhile counsel for the petitioner had omitted to put some important questions to the witnesses at the time of cross examination – Application Allowed – Conditions imposed.
[Para 5]
Case Referred :
A.G. v. Shivkumar Yadhav, (2016) 1 L.W.(Crl.) 561
ORDER
Mr. N. Anand Venkatesh, J. – This petition has been filed challenging the order passed by the Court below partly allowing the petition filed by the petitioner under section 311 of Cr.P.C., 1973 to recall and cross examine PW.1 to PW.4.
2. The petitioner is facing trial before the Court below for offences under Sections 170 and 379 of IPC. The prosecution examined four witnesses. The petitioner cross examined PW.1 and PW.2. However, no cross examination was done insofar as, PW.3 and PW.4 are concerned. Therefore, the petition was filed to recall PW.1 and PW.2 for further cross examination and PW.3 and PW.4 for cross examination.
3. The Court below on considering the entire facts and circumstances of the case, gave a specific finding that PW.1 and PW.2 have already been cross examined by the petitioner and there was no reason to recall those witnesses. In this regard, the Court below has also relied upon the judgment of the Hon’ble Supreme Court in A.G. v. Shivkumar Yadhav, reported in 2016-1-L.W.(Crl.) 561 and held that change of counsel will not be a ground for recalling a witness for further cross examination. Therefore, the Court below, dismissed the petition, insofar as PW.1 and PW.2 are concerned and allowed the petition with costs insofar as PW.3 and PW.4 are concerned.
4. The learned counsel appearing for the petitioner would submit that since the petitioner is facing a serious charge, one last opportunity can be given for further cross examination of PW.1 and PW.2 also.
5. The learned Additional Public Prosecutor on instructions would submit that the petitioner has already cross examined PW.1 and PW.2 and after very long time the present petition is filed to recall and for further cross examination of PW.1 and PW.2 only on the ground that the erstwhile counsel for the petitioner had omitted to put some important questions to the witnesses at the time of cross examination.
6. The learned counsel would submit that this plea is unsustainable in view of the judgment of the Hon’ble Supreme Court cited supra. Therefore, the learned counsel would further submit that there is no ground to interfere with the order passed by the Court below.
7. In this case, admittedly, the proceedings commenced in the year 2017 and it is still in the stage of examination of witnesses, on the side of the prosecution. The petitioner having been permitted to cross examine the other witnesses can also be given one last opportunity to further cross examine PW.1 and PW.2.
8. In view of the above, the order passed by the Court below in C.M.P.No.1596 of 2018 dated 25.10.2018 is hereby set aside. The Court below is directed to fix a date for the appearance of PW.1 and PW.2. On their appearance, the Court below is directed to furnish the deposition to them in order to enable those witnesses to refresh their memory with regard to the facts of the case. These witnesses shall be put in box for cross examination only after this process is adopted. The petitioner shall cross examine PW.1 and PW.2 on the same day they appear before the Court. If for any reason, the petitioner fails to cross examine PW.1 and PW.2, the petitioner shall forfeit his right to recall and cross examine these witnesses in future. The petitioner shall pay each of the witness a sum of Rs. 1,000/- on the day, when they appear before the Court below.
9. In the result, this Criminal Original Petition is allowed and the Court below, is directed to complete the proceedings within a period of three months from the date of receipt of a copy of this order.
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