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vignesh Achar (advocate)     08 October 2011

Recall by prosecution

Hi,

     In one of my case the Prosecution is intending to examine a witness who is not at all cited in the Charge sheet.. I represent the defence and i have filed my serious objections to it. Is there any citation in support of my contention that PROSECUTION CANNOT EXAMINE A WITNESS WHO IS NOT CITED IN CHARGE SHEET.



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 3 Replies

Ravikant Soni (LAWYER IN JAIPUR)     08 October 2011

But prosecution may pray under 311 of CrPC. It's courts discretion to call or recall any witness.

Arvind Singh Chauhan (advocate)     08 October 2011

 

Try these applicable to your case-

 

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-851.

 

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.

prashant pundhir (Criminal Lawyer)     09 October 2011

Sec 311cr.p.c. clearly says that at any stage of trial-

1.Court can summon any person as a witness;

2.Examine any person who is in attandance though not summoned;

3.recall and re-examine any person already examined .

Again in a very important decision in Mani v/s state ,1986 ,madras high court held that "where a person was essentially a witness for the prosecution and the prosecution should have cited him either in the chargesheet or immediately afterwards but failed to do so ,the failure of the prosecution to call him as the witness can not be made up by the court excercising it's power under this section.Although the court can examine a witness at the instance of the prosecution or defence ,still ,when the prosecution asks the court to examine him because it could not examine him though it had intended to do so,that should be no ground for the court to exercise its discretion under this section .


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