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2023 (8) TMI 1447 - HC - Indian LawsRobbery - snatching away a gold chain weighing 16 grams belonging to PW1 - seeking to recall application under Section 311 of Cr.P.C - whether there was any chance of identification which is essential for the just decision of the case? - HELD THAT:- Section 311 Cr.P.C provides that any Court may, at any stage of inquiry, trial, or other proceedings under the Cr.P.C., 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 matter. The aid of Section 311 Cr.P.C. should be invoked with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case, and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. It is trite that due care should be taken by the Court while exercising power under the section, and it should not be used for filling up the lacuna by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence or the accused or to give an unfair advantage to the rival side and further, the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties - Recalling a witness for the just decision of the case is not a hollow procedure. A strong and valid reason should be recorded for the exercise of that power facilitating a just decision. The application under Section 311 of Cr.P.C was filed at the very fag end of the trial. The prosecution had enough opportunity earlier. The delay in filing the application is one of the most important factors that has to be explained in the application. This Court is of the view that the learned Magistrate was not justified in allowing the application to recall the witness - The application seeking the recalling of witness stands dismissed.
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