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In a negotiable instrument act 138, (in Trial Court) the compalinant submitted his affidavit and crossed by Accused Lawer. as a Witness (CW-1) Accused given 313 statement, accused also crossed by compalinants lawer. Matter is kept for arguments. Compalinant is now filing an application for recalling him ofr giving evidence under Crpc 311, just to submit some additional documents. Is it maintainable?
Re examination of witness- object- purpose is only to get the clarification of some doubt created in cross examination- one can not supplement the in chief by way of reexamination and for the first time, start introducing totally new facts which have no concern with cross examination- SC-NCC-2009-897.
It is well settled that no party can take advantage of it’s own wrong and if power is exercised under this section to enable the prosecution to plug in the holes in its case- The afore said principle would be given a good by- BOM- Cr.L.J.-1996-365,368.
Prosecution can not be allowed to fill up lacuna by filing application under Sec 311 and examine a witness in support of a document. Defect in prosecution case can’t be cured by marking of a document at belated stage and examining witness in support thereof –Cr.L.J.2000-Mad-624.
Sec-311 can’t be exercised only to fill the lacuna in the prosecution evidence- NCC-2007-UTT-815.
Evidence of complainant closed after giving two opportunity and complainant remain absent on such dates- his application under Sec 311 was rejected by trial court-Session court also rejected the revision- prayer under 482 Cr.P.C for quashing- Not quashed- No abuse of power- NCC-2008-UTT-313-SC’s Rulings.
YES THE COURT HAS POWER TO RECALL ANY WITNESS ANY TIME BEFORE PRONOUNCEMENT, BUT THE APPLICATION U/S 311 IPC CANNOT BE ALLOWED IF THE SAME IS FOR FILING UP THE LACUNA IN THE PROSECUTION CASE IS FILED BY THE PROSECUTION. THOUGH THE ACCUSED CAN ALSO FILE THE APPLICATION FOR RECALLING THE PROSECUTION WITNESS FOR HIS FURTHER CROSS EXAMINATION, IF NEW FACTS HAVE CROPPED IN, BUT IF THE QUESTIONS SORT TO BE PUT TO THE WITNESS Existed AT THE TIME OF CROSS, THEN IT CANNOT BE ALLOWED.
Till the decision is pronounced, the Court may permit a witness to be re-examined.
1. 'Im Complainant in a S. 200 CrPC . Since I am conducting complaint case as party in person by oversight I unknowingly closed my witness list on last date of hearing and while scrutiny of certified copies of complete file till that date I realised I need to call one of the closed witness again for exhibiting certain fresh documents with witness Statement under Oath. Hence I filed S. 311 CrPC. Ld. ACMM Court pointed to me that I have closed my witness list. I reasoned he being "material witness" it is necessary to recall him and it was allowed to recall the same witness once again, summon already issued and service effected for next date of hearing.
Now Que. : Me being complainant I have not given my Statement yet like I said above I closed inadvertently my witness list but was allowed opportunity under S. 311 CrPC so later when cognezence is taken upon my Statement in this Complaint Case will my above act of recalling witness by Accued side be construted as what Arvind says?
Kindly educate me on above.
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Yes, Court can recall the witness at any stage of hearing before judgement. However the said witness can not introduce new fact in the case and he can be re examined only for the purpose of clarification or explanation of facts that already came in the cross examination. It is important to note that the provision of re-examination can not be used for wiping out the admissions sought by the defence in its cross examination.
i have a complaint where two case have been filed against me where in am accused Case A and Case B in both the complaint the complainant and accuse are same the cases are for different cheque dishnoured while submiting the examination in chief with respect to case A the complainant mentions and marks and exhibits the cheque, bank return memo, postal aknowladement and other exhibits with respect to case B and with respect to case B the complainant in his examination in chief mentions and marks and exhibits the cheque bank return memo, postal aknowladement and other exhibits with respect to case A this fact was brouhgt to notice in the cross of the complainant and as such the cross of the complainant was over and the matter was posted for further witness now the complainant have came forward with an application to inter change the examination in chife ie: to place the examination in chief of A in the case of B and visa versa .as such the complainant have not mentioned any section in which such application for exchange is mader for . so my question is there any peovision where such inter change of examination in chief of diferent cases be allowed and if not the any judgmnet to object such application to fill in lacuna