Power to recall witness should be exercised with discretion: HC

The Punjab and Haryana high court said the power of a court to recall witness for examination has to be exercised with discretion after the court is satisfied that the demand for the same is not a frivolous or a vexatious one to delay the trial

The Punjab and Haryana high court said the power of a court to recall witness for examination has to be exercised with discretion after the court is satisfied that the demand for the same is not a frivolous or a vexatious one to delay the trial.

The HC declined the request from two accused in an alleged case of gangrape reported in April 2017 in Tohana (Fatehabad) in Haryana. (iStock)

The HC bench of justice Jaishree Thakur observed that an onerous duty has been cast upon the courts to ensure fair trial and to arrive at the truth, for which a witness can be recalled to testify under Section 311 of the CrPC. But the power has to be exercised with discretion.

The HC declined the request from two accused in an alleged case of gangrape reported in April 2017 in Tohana (Fatehabad) in Haryana. They had challenged the August 2019 order of the additional district and sessions judge, Fatehabad, whereby an application for recalling two witnesses was dismissed.

As per the order, during the course of proceedings before the trial court, the matter was compromised on January 1, 2018 after it was agreed that one of the accused would solemnise a marriage with the girl.

The complainant resiled from her statement to secure the accused persons’ release. The girl’s family made arrangements for the marriage, but the accused did not turn up. The complainant filed plea for re-examining herself, which was allowed.

Subsequently, the accused too filed a plea for re-examination of two witnesses arguing that cross examination of two witnesses was not proper and accused be allowed to recall two witnesses.

The HC observed that the argument that proper questions could not be put to the witnesses in view of the compromise being in effect is not sustainable, as the medical was on record and available for the counsel to cross-examine the witnesses.

There is nothing on records to show that due opportunity was denied to the petitioners herein from cross-examining the witnesses, it said further adding that a perusal of the pleadings and dates as mentioned concludes that the petitioners had been diligently following their case and were afforded opportunity to cross examine two witnessed in question.

Now, seeking to recall the witnesses already duly examined is nothing but an effort to delay the entire trial and to fill up the lacunas which cannot be permitted at any cost, the court added, dismissing the plea.