S.J.MUKHOPADHAYA, J. - (1.) THIS criminal revision application was preferred by petitioners against the order dated 14th May, 2003 passed by the learned 1st Additional Sessions Judge, Koderma in Sessions Trial no. 490 of 1999 arising out of Koderma P.S. case no. 148 of 1999, corresponding to G.R. case no. 343 of 1999, registered u/ss. 498A and 306 I.P.C., whereby and whereunder learned 1st Additional Sessions Judge, Koderma has refused the prayer made on behalf of petitioners u/s. 311 Cr.P.C. to recall and re -examine P.W. nos. 1 to 6 and 9 already examined.
(2.) LEARNED counsel for the petitioners submitted that both the parties have settled their dispute amicably outside the Court and, accordingly, a compromise petition has been filed. The defence intended to recall and re -examine P.W. nos. 1 to 6 and 9 but it has been illegally rejected. To secure the ends of justice, the trial court should have recalled all the material witnesses no. 1 to 6 and 9 for their further cross -examination; it was essential for just decision of the case. Reliance was placed on the decisions of this Court in the case of Tetri Devi V/s. Sukro Mahto ', 2002 3 JCR 15 (Jhr.) and one unreported decision of this Court dated 3rd June, 2003 passed in Criminal Revision no. 189 of 2003 ("Vijoy Ram and Others V/s. State of Jharkhand"), wherein the Court allowed the prayer made u/s. 311 Cr.P.C. to recall certain prosecution witnesses in view of new development that both the parties had entered into compromise and had filed joint compromise petition in the court below itself. In the present case, learned single Judge vide its order dated 2nd July, 2004 while doubted the correctness of the orders passed in the aforesaid cases, the offences in this case being non -compound -able, referred the case for hearing by a Division Bench. Learned counsel for the petitioners relied on the decision of the Supreme Court in Mahesh Chand V/s. State of Rajasthan, 1988 S.C. 2111, wherein the Apex Court permitted to compound the offence u/s. 307 I.P.C. Reliance was also placed on the decision of the Supreme Court in 'Bharat Singh V/s. State of M.P. ', 1990 (Supp.) S.C.C. 62. In the said case, parties entered into compromise outside the Court and the injured compensated. Injury caused by accused to victim was not proved to be grievous injury and the conviction was altered from section 326 to section 324 I. P.C. and permission was granted to compound the offence. But the submission as made. in this case by the counsel for the petitioners cannot be accepted. The Supreme Court in the case of Ramlal V/s. State of J & K, AIR 1999 SC 895, after referring to section 320(9) of the Code of Criminal Procedure, rendered the decision in Mahesh Chand (supra) as per incuriam. In the case of Surendra Nath Mahanty V/s. State of Orissa, AIR 1999 SC 2181, the Supreme Court observed: "In our view, submission of the learned counsel for the respondent requires to be accepted. For compounding of the offences punishable under the Indian Penal Code, complete scheme is provided under Section 320 of the Code of Criminal Procedure, 1973. Sub -section (1) of Section 320 provides that the offences mentioned in the table provided thereunder can be compounded by the persons mentioned in Column No. 3 of the said table. Further, sub -section (2) provides that, the offences mentioned in the table could be compounded by the victim with the permission of the Court. As against this, sub -section (9) specifically provides that "no offence shall be compounded except as provided by this Section". In view of the aforesaid legislative mandate, only the offences which are covered by table 1 or 2 as stated above can be compounded and the rest of the offences punishable under Indian Penal Code could not be compounded. "
(3.) THERE is no dispute with the principle of law laid down in various cases that the Court is fully empowered u/s. 311 Cr.P.C. to recall any witness at any stage, provided it is considered expedient and in the interest of justice but the witnesses cannot be recalled to achieve result which is not legally permissible. If it is brought to the notice of the Court that certain facts which were necessary but could not be brought to the notice of the prosecution witnesses during cross - examination, in advertently and the Court feels that further evidence of such person is essential to the just decision of the case, it is obligatory on the part of the Court to summon such witness for re -examination but the Court is required to exercise its discretion properly and judiciously. If it appears to the Court that attempt was made by the defence to win over prosecution witnesses, in such circumstances, rejection of application for recalling prosecution witnesses is proper. In the case of Mohd. Hussain Umar Kochar V/s. K.S. Dolip Singhji, AIR 1970 SC 45, the Supreme Court held 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 in that case, there should be affidavit of the witnesses to be filed before the Court that their statement given in the Court was wrong and they wanted to give correct statement.;