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TMI Blog2023 (8) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 14.12.2021 in CRMM No. 40058/2021 (hereinafter referred to as the "Impugned Order") passed by the High Court of Punjab & Haryana at Chandigarh (hereinafter referred to as the "High Court"), by which the prayer for recall of the Appellant as a witness in the trial before the Court below for further examination has been rejected. 4. The brief facts relating to the case are that the Appellant made a complaint against the Accused that they, being ex-employees of his company, had stolen company data and used such data to manufacture equipment, which was being manufactured by the Appellant's company. During trial, before the Report from the Central Forensic Sciences Laboratory, Chandigarh (hereinafter referred to as "CFSL") c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Appellant is only indulging in dilatory tactics as he has every opportunity to make submissions, as he deems fit, during arguments which are yet to be concluded. Learned Counsel further contented that the Appellant cannot be, and should not be allowed to, fill up the lacunae left in the earlier round, at the current stage. 8. Learned Counsel for the State joined the proceedings via video-conferencing. 9. Section 311 [Power to summon material witness, or examine person present.-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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spelt out in the order. 18. In Vijay Kumar v. State of U.P.[Vijay Kumar v. State of U.P., (2011) 8 SCC 136: (2011) 3 SCC (Cri) 371: (2012) 1 SCC (L&S) 240], this Court while explaining scope and ambit of Section 311 has held as under: (SCC p. 141, para 17) 17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said Section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of [CrPC] and the principles of criminal law. The discretionary power conferred Under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. 19. In Zahira ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Yadav [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510], it was held thus: (SCC pp. 404g-405a) ... Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. 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. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is absurd to contend that he, after a period of four years and that too after his examination- in-chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed. 10. In Manju Devi v. State of Rajasthan, (2019) 6 SCC 203, this Court emphasized that a discretionary power like Section 311, Code of Criminal Procedure is to enable the Court to keep the record straight and to clear any ambiguity regarding the evidence, whilst also ensuring no prejudice is caused to anyone. A note of caution was sounded in Swapan Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328 as under: 10. The first part of this Section which is permissive gives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision. 11. In Harendra Rai v. State of Bihar, a 3-Judge Bench of this Court was of the opinion that Section 311, Code of Criminal Procedure should be invoked when '... it is essential for the just decision of the case.' 12. Having considered the matter and surveyed the law supra, the Court finds that a case for interference has been made out. Under the peculiar facts of the present case, the request for recall of the Appellant Under Section 311, Code of Criminal Procedure was justified, as at the relevant point of time in his initial deposition, there was no occasion for him to bring the relevant facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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