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Madras HC: Practice of Recalling Witnesses Repeatedly Should Be Stopped

Author: Ankita Karn (REVA University, Bangalore)

Madras High Court has held that the practice of treating petitions under Section 311 of the Code of Criminal Procedure, 1973 in a casual manner and recalling witnesses repeatedly for cross examination should be stopped. The court noted that where Lower Courts due to High Court’s directions were dealing with recall petitions in stricter manner, a casual approach adopted by the latter in dealing with such petitions would contribute to the pendency of cases.

Madras High court in its recent order held that the practice of treating petitions under Section 311 of the Code of Criminal Procedure, 1973 in a casual manner and recalling witnesses repeatedly for cross examination should be stopped.

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In this order the accused were charged for extortion and cheating before the Metropolitan Magistrate Court at Egmore in Chennai. The final report of this was taken in the year 2007 and gradually there was no progress in the case and finally the trial gets started in the year 2012. There were four witnesses who examined on the side of prosecution. Between the year 2012 and 2018, the witnesses were examined but despite the presence of a counsel their cross examinations were not conducted by the accused parties and when the examinations were ended in February 2018, then on October 2018 the petitioners filed a petition to recall the witnesses for cross examination.

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The Trial court didn’t find any reason for the delay in filing the same and therefore dismissed the petition. It is also held that witness cannot be called at the desire or urge of the accused. This order of the Trial Court was challenged in the instant case under Section 482 of the Code of Criminal Procedure, 1973.

The counsel for petitioner had prayed before the High Court for an opportunity to cross examine the witness for a fair trial. The petitioners justified their plea by stating that the time had omitted to do the same and that their new counsel had immediately moved the plea under Section 311, CrPC on being aware of the omission.

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Justice N Anand Venkatesh observed that:

This Court encounters on a daily basis, petitions of this nature where the witnesses are sought to be recalled after long number of years, after they have deposed before the Court during Chief examination. On the one hand it is true that fair trial must be ensured to the accused persons. That does not mean that the accused persons will examine witnesses on their own sweet will and pleasure and the accused persons cannot expect the Courts to wait for them to take a decision as to when they will cross-examine the witnesses.

If this practice is encouraged, the proceedings are bound to get delayed and the trial Courts will be clogged with the pending cases.”

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