VINEET SARAN, J. - (1.) THIS petition under Section 482 of the Code of Criminal Procedure has been preferred against the order dated 1 -5 -2003 passed by the Additional District and Sessions Judge, Fast Track Court No. 2, Kanpur Dehat whereby the application under Section 311 Cr. P.C. filed by the applicants has been rejected.
(2.) I have heard Sri K.K. Tripathi, learned Counsel appearing for the applicants as well as the learned Additional Government Advocate for the respondents. Briefly stated, the facts of this case are that a Sessions Trial No. 412 of 2002, under Sections 498 -A and 304B, IPC is pending against the applicants. After the prosecution witness (P.W. 1) Awadhesh Kumar had already been cross -examined on two dates and thereafter other witnesses had also been examined, the applicants filed an application under Section 311 Cr. P.C. for recalling the said P.W. 1 for re -examination. Learned Counsel for the applicants has submitted that the ground for recalling the said witness was that after the change in Counsel for the applicants before the trial Court, it was brought to notice that certain questions, which ought to have been asked in the cross -examination of the P.W. 1, had been left out and hence the application was filed which has wrongly been rejected by the Court below. Having heard learned Counsel for the parties as well as on perusal of the record, I am satisfied that the impugned order rejecting the application for recalling the witness is justified and does not call for interference by this Court. Section 311 of the Code of Criminal Procedure empowers the Court to summon any person as a witness or recall and re -examine any person already examined, if his evidence appears to it to be essential for the just decision of the case. No doubt the power conferred on the Court is very wide but the same has to be exercised with restrain and judiciously. It cannot be used as a tool to fill up the lacuna or short fall in the evidence of the applicant or to delay the trial. Merely because the Counsel for the applicant before the trial Court had been changed and it was found by the new Counsel that certain questions had been left out from being asked from a witness who had already been thoroughly cross -examined by the earlier Counsel would not be sufficient ground to recall the witness for re -examination.
(3.) PRIMARILY the Court has to be satisfied that recalling of the witness would be essential for the just decision of the case. It is true that the Courts are not there to Judge the performance of the parties in conducting their case but to arrive at a correct decision in the case. However, in the absence of any evidence coming forth from the applicants to satisfy that the trial would be seriously prejudiced if the said witness is not recalled for re -examination, the Court would be justified in not exercising its jurisdiction under Section 311 Cr. P.C. The accused cannot have the witness recalled for re -examination as a matter of right. The Court should be satisfied that the conditions of Section 311 Cr. P.C. are fulfilled. In the present case, the recall of the witness has been sought merely because of change in Counsel. If this is allowed, it would become a never ending process as every time the accused changes his Counsel, the new Counsel is likely to find some lacuna or the other in the cross -examination done by the earlier Counsel and thus pray for recall of the witness already examined. The extra -ordinary provision of Section 311 Cr. P.C. cannot be used by the accused, as an after though, to fill in the gaps and strengthen his case after other witnesses have been examined. This power has been vested in the Courts only where it finds that it would be essential for the just decision of the case. In the absence of the applicants having been able to show before the trial Court as to how it would prejudice the trial in arriving at a just decision, the trial Court was justified in rejecting the application filed under Section 311 Cr. P.C. for recalling the witness.;