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Judgment
Heard learned counsel for the petitioners and learned APP for the State.
The present application has been filed for quashing order dated 21.08.2023 passed by the learned Additional Sessions Judge-VIII, Gopalganj in Session Trial No.302 of 2014 (arising out of Phulwaria P.S. Case No.110/2013) by which petition filed by the accused petitioners under Section 311 of the Cr.P.C., for recalling all witnesses i.e. PW-1 to PW-6 for cross-examination has been rejected.
Learned counsel for the petitioners has submitted that the order impugned has wrongly been passed rejecting the prayer of the petitioners for recalling of the witnesses with the aid of Section 311 of the Cr.P.C., as there were certain relevant questions which needed to be put to the prosecution witnesses and by not permitting the petitioners from asking the said questions which are necessary for the proper adjudication of the case, grave injustice would result.
Learned APP for the State has although strongly opposed the present application and has supported the reasons given by the impugned order.
I have perused the order impugned and have also gone through the petition filed under Section 311 of Cr.P.C. along with deposition of one witness, being PW-1, whose evidence has been brought on record. The present case is one under Section 302 and other analogous Sections of the Indian Penal Code and power under Section 311 of Cr.P.C. is to be exercised only upon the subjective situation of the Court that recall of the prosecution witness is necessary for the proper adjudication of the case. The words of the statute are itself clear that the Court is to exercise such power of recall only if his evidence appears to be essential to just decision of the Court. The law is well settled that power under Section 311 of the Cr.P.C. is not to be used for the purposes of filling of any lacunae or for the purposes of creating new defences and from the perusal of the evidence of PW-1, it is gathered that the proposed questions of the petitioners have already been posed to the witness in one or the other manner.
In view of the afore-mentioned facts and also considering the law laid down in this regard, this Court is of the considered view that the prosecution witnesses have already answered the relevant questions and the present FIR is of the year 2013 leading to a sessions trial of the year 2014. It further appears that the first witness PW-1 was examined in the year 2018, while the examination of the last witness was done on 06.03.2020. After lapse of so many years, there is no question of allowing any application for recall of witnesses under Section 311 of Cr.P.C. and it is made clear that this provision cannot be permitted to be used for the purposes of either introducing new defence or for the witnesses to resile from their earlier version in order to demolish the prosecution case.
Thus, in view of all the afore-mentioned considerations, this Court is not inclined to interfere with the order dated 21.08.2023 passed by the learned Additional Sessions Judge-VIII, Gopalganj, as such, this application stands dismissed.