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Accused has a right to summon any evidence/witness which is necessary for the proper appreciation of the prosecution evidence under section 311, CrPC

Case Title: Amarjeet @ Kaluwa v. State of UP & Anr.

Decision of the Allahabad High Court

  • The Allahabad High Court, while allowing an application to recall witness filed by an accused under Section 311 of the Code of Criminal Procedure (Cr.P.C.), held that the accused has a right to summon any evidence/witness which is necessary for the proper appreciation of the prosecution evidence.
  • The Allahabad High Court in this case set aside the order of the rejection of the Appellant’s bail application on the ground that the Trial Court did not take into account the merits of the case and rejected the application based on irrelevant grounds.
  • The Trial Court was directed by this court to recall the injured witness PW-5 Nitin under Section 311 Cr.P.C. for the said purpose at an early date.
  • In this case, the accused was charged under Section 302, 307, 201, 376D, 394, 411 and 120 IPC and section ¾ POCSO Act, 2012, for the offence of rape including murder of a minor girl child and for causing injury to her brother.
  •  The High Court took note of the submissions made by the learned counsel for the applicant that the only stage for submitting/producing the video clip of the injured witness PW-5 Nitin is under Section 233 Cr.P.C., which comes after recording of statement under Section 313 Cr.P.C. and the accused-applicant can only produce the video clip in his defence before the trial court and not before that. Therefore, the further examination of PW-5 Nitin is necessary for the purpose of confronting his statement contained in the video clip in which he has disclosed the names of actual accused persons, who have committed the offence.

What did the Allahabad High Court say in its order?

  • The single-judge bench of Justice Rajiv Joshi said in its order, "There can be no dispute that the accused has a right to summon any evidence/witness which may be relevant for proper appreciation of the prosecution evidence and to substantiate his defence, therefore, in any case when the mobile and pen drive have already been exhibited in the record, then, recall of the injured witness appears to be necessary for his re-examination by the defence on the question of that video clip".
  • "When the accused-applicant is in jail, therefore, there is also no occasion to delay the proceeding of the trial," the bench added while upholding that the Trial Court erroneously rejected the Applicant’s bail application on the ground that the application was sought just to delay the trial proceedings.
  • The court further observed, "So far as the observation made by the trial court that the said application is without the list of questionnaire is concerned, it is firstly stated that there is no requirement under the law to file questionnaire along with the application for recalling the witness and secondly that it is clearly mentioned in the application under section 311,Cr.P.C. itself that injured witness P.W.-5 Nitin is to be summoned with regard to the contents of his video clip."
  • What does settled law on this subject say? (SLIDE 4, heading on top, and picture below)
  • Section 311 of the Code of Criminal Procedure, 1973 lays down the provision relating to the power to summon material witness, or examine person present. As per the provision, any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.
  • This power is to 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.
  • The court noted the decision of the Supreme Court in the case of State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016) 2 SCC 402-
  • "Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily."

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