- Bookmark
- Share
- CaseIQ
State (Delhi Administration) v. Ramesh Kumar
Factual and Procedural Background
The respondent is facing trial for offences punishable under Sections 323 and 302 of the Indian Penal Code (IPC). There was only one eyewitness of the occurrence, identified as Public Witness 1 (PW1), Pushpa, who was examined in court with her examination-in-chief recorded on 13.4.1987 and cross-examination completed on 4.7.1987. Subsequently, PW1 filed an application on 12.12.1988 seeking permission to narrate the true facts of the case, supported by two affidavits that contradicted her earlier court testimony and statements given to the police. The Additional Sessions Judge initially did not allow this application, deferring the decision until after completion of prosecution evidence.
The respondent filed an application praying that PW1 be recalled for further cross-examination based on the new material contained in the affidavits, to confront her with the contradictions. The Additional Sessions Judge, exercising powers under Section 311 of the Code of Criminal Procedure (CrPC), allowed the application and directed the recall of PW1 for further cross-examination. The State challenged this order by filing the present criminal revision.
Legal Issues Presented
- Whether the trial court was justified in exercising its power under Section 311 CrPC to recall a witness after her evidence was recorded, based on affidavits contradicting her earlier testimony.
- Whether allowing a witness to go back on her sworn testimony through recall and further cross-examination is permissible under the law.
- The scope and limits of the court’s discretion under Section 311 CrPC to summon, recall, or re-examine witnesses at any stage of the trial.
Arguments of the Parties
Petitioner's Arguments
- The court ought not to have passed the impugned order as it effectively permitted a witness to retract her sworn testimony given in court.
- It was argued that PW1 was likely influenced or "won over" by the respondent after her examination, thus the power under Section 311 CrPC should not have been exercised to recall her for further cross-examination.
Respondent's Arguments
- The respondent contended that the affidavits filed by PW1 constituted new material necessitating recall under Section 311 CrPC to confront the witness with contradictions and elicit the truth.
- Cited precedents supporting the recall of witnesses when their evidence appears essential for a just decision of the case.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jamatraj Kewalji Govani vs. State | Interpretation of Section 540 of the previous Code (similar to Section 311 CrPC); distinction between discretionary and mandatory powers to summon or recall witnesses at any stage for just decision. | The court relied on this precedent to affirm that the power to recall witnesses is wide and can be exercised at any stage if it is necessary for a just decision. |
| Mohd. Hussain vs. K.S. Dalipsinghji | Recall of witness requires material evidence showing that the witness is prepared to give materially different testimony; inherent power to recall is not absolute without such material. | The court emphasized that recalling a witness must be supported by material (such as affidavits) to justify the exercise of power under Section 311 CrPC. |
| Sukkhan vs. State of U.P., 1988(1) Crimes 245 | After a witness has been examined, if an affidavit denies witnessing the occurrence, the witness should be summoned afresh under Section 311 CrPC and confronted with the affidavit. | The court noted this precedent to support recalling a witness to confront contradictory affidavits and to afford a fair opportunity to explain the behavior. |
Court's Reasoning and Analysis
The court analyzed the scope of Section 311 CrPC, recognizing it as a broad provision enabling the court to summon or recall witnesses at any stage if their evidence is essential for a just decision. It distinguished between discretionary and mandatory aspects of this power, emphasizing that once the court is satisfied that recalling a witness is necessary, it must exercise the power accordingly.
The court observed that PW1 had herself filed affidavits contradicting her earlier testimony, which constituted sufficient material to justify recalling her for further cross-examination. This step was viewed as necessary to enable the defense to confront PW1 with these contradictions and to uncover the truth. The court rejected the petitioner's argument that recalling the witness would improperly allow retraction of sworn testimony, noting that no judgment was cited to support such a limitation on Section 311 CrPC.
The court also referenced precedents which held that the power to recall witnesses is exercisable for the just decision of the case and that affidavits or other material contradicting prior testimony can be grounds for such recall. The court concluded that the Additional Sessions Judge acted within the bounds of the law and in the interest of justice by permitting the recall of PW1.
Holding and Implications
The criminal revision is dismissed, thereby upholding the order permitting the recall of Public Witness 1 for further cross-examination under Section 311 CrPC.
The direct effect of this decision is that the trial court's discretion to recall a witness when new contradictory material emerges is affirmed and must be exercised in the interest of justice. The ruling clarifies that a witness may be recalled to confront contradictions in affidavits filed after examination without violating principles of sworn testimony. No new precedent was set beyond confirming the established interpretation of Section 311 CrPC in this factual context.
(1) Only a short point is involved in this criminal revision. So, I proceed to dispose of this finally.
(2) The respondent is facing trial for offences punishable u/Ss. 323 and 302 of the IPC. There is only one eye witness of the occurrence and she was examined as PW1. Her exam-in-chief was recorded on 13.4.1987 and her cross-exam, was completed on 4.7.1987. Pw 1 Pushpa herself had made an application on 12.12.1988, in which she had prayed for being given permission to narrate the true facts of the case and she filed two affidavits giving out her version of the occurrence which was at variance to what she had deposed in court as Public Witness 1 or had told the police in the F.I.R. The Additional Sessions Judge had not allowed that application and had observed that the question whether Public Witness 1 should be allowed to give any other statement would be decided after prosecution evidence has been completed.
(3) The respondent had filed an application praying that Public Witness 1 be recalled for purposes of further cross-exam, as new material in the shape of affidavits of Pushpa had come on the record and thus, it has become necessary to confront Public Witness 1 with her averments made in the two affidavits being in contradiction what she had deposed in court. The learned Additional S.J. exercising his power u/S. 311 of the Code of Criminal Procedure ('the Code') had allowed this application and had directed for recalling Pw 1 for further cross-exam. This order has been challenged by the State by filing this criminal revision.
(4) Counsel for the petitioner has vehemently argued that the court should not have passed the impugned order as it would amount to allowing a particular witness to go back on his sworn testimony in court. He has urged that in all probability Pushpa had been won over by the respondent after she had been examined in court as Public Witness 1 and thus, the Additional S.J. was not right in exercising his power u/S. 311 of the Code for directing recalling of Pw I for purposes of further cross-exam, (5) Under S. 311 of the Code, the court has discretion at any stage of the inquiry or trial or other proceeding to summon any person as a witness or recall or re-examine any person already examined and the court is bound to summon and examine or re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
(6) The Supreme Court had an occasion to interpret similarly worded S. 540 of the previous Code in Jamatraj Kewalji Govani vs. State and it was laid down that S. 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. It was laid down that as the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bonafide of the opinion that for the just decision of the case, the step must be taken and this power is exercisable at any time.
(7) In Mohd. Hussain vs. K.S. Dalipsinghji , a question of recalling a witness, who had already been examined, came up for consideration. One Public Witness Ali was examined as a witness and after his cross- exam. had concluded the defense had moved an application for recalling him for cross- exam. The request was declined. The plea taken by the defense for recalling the witness was that the witness was repentant and wanted to say that he had given false evidence. The Supreme Court held that no ground was made out for recalling Ali because there was no affidavit from Ali nor was there any other material showing that his testimony was incorrect in any material particular. The court emphasized that the court has inherent power to recall a witness if it is satisfied that he is prepared to give evidence which is materially different from what he had given at the trial, but there must be some material from which the court could be satisfied that the witness should be recalled for giving further statement, may be in contradiction with the statement already made by him.
(8) The learned counsel for the respondent has also brought to my notice Sukkhan vs. State of U.P., 1988(1) Crimes 245. In the said case also, after a witness had been examined in court he had given an affidavit denying that he had witnessed the occurrence. The application moved by the accused praying for recalling of the said witness for further cross-exam, was allowed by the High Court mentioning that the said witness should have been summoned afresh U/S. 311 of the Code and confronted, with his affidavit and given an opportunity to explain his behavior.
(9) In the present case, in view of the fact that Public Witness 1 Pushpa had herself given affidavits giving facts which are in contradiction with what she had deposed in court, the discretion exercised by the Additional S.J. in permitting recalling her for further cross-exam, in order to enable the defense to confront her with her affidavits appears to have been exercised in the interest of justice. After all the court has to appraise the testimony of the solitary eye witness and in case the prosecution feels that Pw 1 had been won over and had gone back on her sworn testimony by filling affidavits at the instance of the defense, the prosecution would be well within its right to pray to the court for putting questions to Public Witness 1 in shape of cross-exam, to elicit the truth from her. No judgment has been brought to my notice by the learned counsel for the petitioner where in such like facts the power u/S. 311 of the Code was held not exercisable by the trial court; rather it is obligatory for the trial court to recall any witness if his evidence appears to be essential to the just decision of the case. The affidavits of Public Witness 1 filed after her statement had been recorded could furnish sufficient material for the court to be satisfied that it is a fit case for recalling the said witness for purposes of further cross-exam and re-exam.
Alert