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Judgment
The present petition under Section 528 of B.N.S.S. has been filed by the applicant challenging the order dated 15.06.2026 passed in ST. No.44/2023 by III Additional Sessions Judge, District Chhatarpur by which the application filed for recalling of prosecutrix (PW/1) for cross examination under Section 311 of Cr.P.C. has been dismissed.
Learned counsel for the applicant submits that the statement of the prosecutrix has already been recorded. The DNA report was received only after the recording of her testimony. At the time of her cross-examination, the DNA report was not available; therefore, no questions pertaining to the said report could be put to her. In these circumstances, the applicant filed an application under Section 311 of the Cr.P.C. before the Trial Court seeking recall of the prosecutrix for her further cross-examination. However, the Trial Court has wrongly rejected the said application whereas accused should be given full opportunity to defend himself and to prove his innocence. It is, therefore, prayed that, in the interest of justice, the prosecutrix be recalled for the limited purpose of further cross-examination with reference to the DNA report.
3 . Learned counsel for the State submits that the statement of the prosecutrix has already been recorded and that she has been subjected to a detailed cross-examination. It is further submitted that the Scientific Officer of the Forensic Science Laboratory (FSL), who conducted the DNA examination, has also been examined before the Trial Court. Even in the application filed under Section 311 of the Cr.P.C., the applicant has not specified about the questions proposed to be put to the prosecutrix with reference to the DNA report. It is further submitted that the power under Section 311 of the Cr.P.C. cannot be invoked to enable a party to fill up the lacunae in its case. Therefore, the Trial Court has rightly rejected the applicant's application, and no interference is warranted with the impugned order.
Heard learned counsel for both the parties and perused the case diary.
The nature and scope of the power exercised by the Court under Section 311 of Cr.P.C. was elaborately considered in the case of Raja Ram Prasad Vs. State of Bihar and another, 2013(14) SCC 461 and it was held that the power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. The Hon' ble Supreme Court in case of State (NCT of Delhi) Vs. Shiv Kumar Yadav and Another, reported in 2016(3) MPLJ (Cri.) SC 271 has held that discretion given to Court for recalling of witness has to be exercised judiciously to prevent failure of justice and not arbitrarily. Mere observation that recall was necessary for ensuring fair trial is not enough unless there are tangible reasons to show how fair trial suffered without recall.
In case of Ratan Lal Vs. Prahlad Jat, reported in 2017 (9) SCC 340 it has been held as under:
“17.In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice Therefore, the reasons for exercising this power should be spelt out in the order.”
In this case the prosecutrix has already been examined and cross examined before the Trial Court. The subsequent development in this matter is only receipt of D.N.A. report. The D.N.A. report is an expert opinion based on scientific examination. The said report has neither been prepared by the prosecutrix nor does she possess any scientific or any specialized knowledge regarding said report. The D.N.A. expert has already been examined and cross examined by the accused before the Trial Court. The accused is not able to demonstrate that what scientific/specific questions will be put up to the prosecutrix to assist the Court in arriving at the truth. Mere the receipt of D.N.A. report after recording of prosecution evidence does not automatically confer any right upon the accused to seek recall of the prosecutrix for further cross examination.
Having considered the rival submissions, on perusal of the documents filed on record, including the deposition of the prosecutrix, this Court is of the considered opinion, all the possible defences have already been taken by the petitioner in the cross examination of the prosecutrix. In such circumstances, her further cross examination is not necessary and the learned judge has not committed any error in rejecting the application under Section 311 of CRPC filed by the applicant.
The petition being devoid of merits is hereby dismissed.