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Bhaigyoram Khaklary and Ors. Vs. The State of Assam - (High Court of Gauhati) (11 Jun 2019)

Re-examination of a witness by party calling the witness is a right conferred under statute and unless such a right is declined, a party cannot be denied the opportunity to re-examine witness



Present Petition had been preferred against the order passed by the learned Sessions Judge, by means of which the learned trial Court had allowed the petition filed by the prosecution side under Section 311 of Code of Criminal Procedure, 1973 (CrPC) with a prayer to recall a witness.

Petitioners have assailed the impugned order primarily on two counts. Firstly, that no proper reason has been recorded by the learned trial Court before allowing the prayer for recall of the witness in exercise of powers under Section 311 of CrPC. Secondly, the prosecution side having failed to make a prayer under Section 154 of CrPC before the witnesses (PW-17) was discharged after his cross-examination, such a prayer cannot be granted at this point of time.

Recording of evidence of the prosecution side is still under progress in this case. The application under Section 311 of CrPC had admittedly been filed by the prosecution side on the same day on which the witness PW-17 was discharged after the cross-examination. There is nothing on record to indicate that, the prosecution side had declined re-examination of the witness (PW-17).

As per Section 138 of the Evidence Act, 1872 a witness is to be examined-in-chief, then cross-examined and then re-examined. Therefore, re-examination of a witness by the party calling the witness is a right conferred under the statute and unless such a right is declined, the party cannot be denied of such an opportunity to re-examine the witness, if the circumstances of the case so justifies.

Law is firmly settled that, jurisdiction under Section 311 of CrPC is discretionary and unless there is an error in exercise of such jurisdiction, the revisional Court would not ordinarily interfere with the order of the trial court passed in exercise of such discretionary jurisdiction.

In the impugned order, the learned trial Court has made it clear that the defence side would have the liberty to cross-examine the PW-17 afresh. Therefore, no prejudice can be said to have been caused to the Petitioners in the matter. It cannot be said that, prayer to re-call the witness PW-17 was for the sole purpose of curing a lacunae. The impugned order does not suffer from any infirmity warranting interference by this Court.

Further, as per section 154 of the Evidence Act, a party can cross examine his own witness, if the same is permitted by the Court. The power conferred under Section 154 is discretionary in nature and would depend on the facts and circumstances of each case. In the present case, although the Respondent/State had made a prayer in the application filed under Section 311 of CrPC to declare the witness (PW-17) as a hostile witness, no such declaration has been made in the order. Therefore, the question of cross examining the PW-17 by the prosecution side would be subject to the leave granted by the Court at an appropriated stage and also subject to the condition that the defendant side is permitted to further cross examine the said witness. Petition disposed off.


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