Should the court permit the accused to recall a prosecutrix for cross-examination in an offence under the POCSO Act?

Brief facts of the case are that the petitioner is facing trial under

Sections 363, 366 and 376 of IPC and section 5(1)/6 6 of the

Protection of Children from Sexual Offences (POCSO) Act, 2012.

During trial, statements of mother and father of the prosecutrix

were recorded on 05.01.2019 & 03.08.2019 as PW-2 and PW-4

respectively and the prosecutrix was examined on 27.11.2018 as

PW-1. Now, prosecutrix had attained the age of majority and she

again approached the petitioner for having a love affair with him

and informed him that she had given the statements under

undue pressure of family members. On the basis of aforesaid

assurance of the prosecutrix, petitioner filed an application under Section 311 of Code of Criminal Procedure, 1973, for

re-examination of the prosecutrix and her parents and specific

reasons were assigned in the application filed as Annexure P/5

but learned trial Court vide its order dated 26.11.2021 has

rejected the application without appreciating the fact that the

statement of the prosecutrix was recorded under duress and

prosecutrix turned major only in the year 2021 (as per the

prosecution). Hence, the present petition filed by the petitioner.

 8. It is observed by above discussion, right to cross-examination is a part of right to fair trial which every person has in the spirit of right to life and personal liberty. In the case in hand, the ground of re-examination is that earlier the statement of the prosecutrix was recorded under duress but the learned trial court ignoring the aforesaid facts and summarily dismissed the application filed by the petitioner. The learned court below ought to have allowed the petition by exercising the jurisdiction under Section 311 Cr.P.C.

9. In the result, I find some merit in this petition and accordingly, the same stands allowed only for re-examination of the prosecutrix.The learned trial court shall afford a chance to the petitioner to cross-examine the prosecutrix. 

HIGH COURT OF CHHATTISGARH, BILASPUR

CRMP No. 74 of 2022

Order delivered on : 25/02/2022

 Manish Sonkar Vs  State of Chhattisgarh

Dated: 25 /02/2022

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Whether it is necessary to point out material questions which party seeks to put to witness in application for recalling of witness?

Learned counsel for the petitioner vehemently argues that the impugned order deserves to be set aside as an opportunity to cross examine the respondent - landlord subsequent to the amendment of the written statement should be permitted. It is not in dispute that this Court while deciding CR-4077-2015 has taken note of the arguments raised on behalf of the petitioner at that time that the amendment sought to be made is explanatory in nature and it does not alter the stand which has already been taken in the written statement filed earlier. Moreover, the petitioner's undertaking that he would not lead any further evidence was note of by this Court while allowing the amendment in the written statement. 

Learned counsel is unable to point out material questions which the petitioner still seeks to put to the witnesses after recalling him for further cross examination.

Punjab-Haryana High Court

Subhash Jatwani vs Santosh Kumar Banga on 3 December, 2018

Civil Revision No. 8199 of 2018 (O&M)                        1



CORAM:- HON'BLE MRS. JUSTICE LISA GILL

Citation: AIR 2019(NOC) 96 (P &H)

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Whether court should permit recalling of witness for proof of document?

Admittedly, these two letters were relevant for the purpose
of deciding the dispute involved between the parties and hence this
Court has, vide its order dated 15th April 2011, allowed and permitted

the Petitioner to adduce additional evidence in respect of these two
letters. It is a matter of record that thereafter the Petitioner has filed
affidavit of evidence and along with it these two letter were also
produced under the bonafide impression that they were the originals.
However, when it was pointed out in cross-examination that these two
letters are not the originals but the photocopies thereof, the Petitioner
got the original letters produced, which were in the office of his
Advocate and for that purpose witness Ms.Bhairavi Pathak is also
examined and she has explained the reason, under which the originals
remained in the office and the photocopies came to be produced. Her
evidence was led only for the purpose of producing the original letters,
from the proper custody. She was not examined to prove those letters.
Now only to prove those letters, the Petitioner wants that witness
Mr.Rakesh Agarwal may be recalled.
10] If one considers the earlier order passed by this Court
holding that these letters are relevant and therefore granted
permission to the Petitioner to lead additional evidence in respect of
these letters and if one considers the above said sequence of facts,
then interest of justice requires that merely on account of the
negligence or inadvertence on the part of the Petitioner, the Petitioner
should not be deprived of the opportunity to prove these letters and

for that purpose his recall of PW-1 Mr.Rakesh Agarwal become
necessary. The interest of justice always requires that the dispute
between the parties should come to an end completely, finally and
effectively and no one should suffer on account of any negligence or
inadvertence which might have occurred in the course of the
proceeding. In this case, if one considers that the cross-examination of
the witness Mr.Rakesh Agarwal was concluded with an endorsement
that if the original letters are produced, the right of Respondent to
cross-examine him is reserved, then it follows that at that time also
there was understanding that such original letters will be produced
and then the Respondent will further cross-examine the witness.
Therefore, there is no question of any prejudice being caused to the
Respondent. In the interest of justice, it is always desirable that one
last opportunity may be given to the Petitioner to prove these two
letters and for that purpose to recall the witness.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6721 OF 2016
WITH
CIVIL APPLICATION NO. 1682 OF 2016

Styrolution ABS (India) Ltd. V National Education & Information Films Ltd.


CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
DATE : 6th FEBRUARY, 2018.

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Basic principles to be followed for recalling of witness

With the assistance of the learned Counsel for the parties, this Court has gone through the impugned order. It can be seen from the order that the trial Court has considered the facts under which pursis came to be passed on behalf of defendants 6 and 7 and the necessity of recalling the witness to assist the Court in arriving at the proper conclusion. The learned Judge has also relied upon the decisions of the Hon'ble Apex Court in K.K. Vellursamy v. Palanisamy, MANU/SC/0267/2011 : 2011 MhLJ Online (S.C.) 27 : (2011) 11 SCC 275 and Himalayan Co-op. Group Housing Society v. Balwansingh, MANU/SC/0609/2015 : 2015 MhLJ Online (S.C.) 55 : (2015) 7 SCC 373, wherein the Hon'ble Supreme Court had settled the position of law in this regard. It is held by the Hon'ble Supreme Court that where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the Court to clarify the evidence on the issues and will assist in rendering justice and the Court is satisfied that non-production earlier was for valid and sufficient reasons, the Court may exercise its discretion to recall the witnesses or permit the fresh evidence.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 1307 of 2016

Decided On: 29.06.2017

Shewalkar Developers Ltd. Vs. Sidarth Sinha and Ors.

Hon'ble Judges/Coram:

Indira Jain, J.

Citation: 2018(1) MHLJ 346

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Procedure to be followed by court if application for recalling of witness is filed

In K.K. Velusamy (supra), while dealing with the power of the
1 (2011) 11 SCC 2755
Court under Order XVIII Rule 17, this Court held that:-
“9. Order 18 Rule 17 of the Code enables the court,
at any stage of a suit, to recall any witness who has
been examined (subject to the law of evidence for
the time being in force) and put such questions to
him as it thinks fit. The power to recall any witness
under Order 18 Rule 17 can be exercised by the
court either on its own motion or on an application
filed by any of the parties to the suit requesting the
court to exercise the said power. The power is
discretionary and should be used sparingly in
appropriate cases to enable the court to clarify any
doubts it may have in regard to the evidence led by
the parties. The said power is not intended to be
used to fill up omissions in the evidence of a
witness who has already been examined. [Vide
Vadiraj Naggappa Vernekar v. Sharadchandra
Prabhakar Gogate - 2009 (4) SCC 410].
10. Order 18 Rule 17 of the Code is not a provision
intended to enable the parties to recall any
witnesses for their further examination-in- chief or
cross-examination or to place additional material or
evidence which could not be produced when the
evidence was being recorded. Order 18 Rule 17 is
primarily a provision enabling the court to clarify
any issue or doubt, by recalling any witness either
suo moto, or at the request of any party, so that the
court itself can put questions and elicit answers.
Once a witness is recalled for purposes of such
clarification, it may, of course, permit the parties to
assist it by putting some questions.”
And again:-
“19. We may add a word of caution. The power under
Section 151 or Order 18 Rule 17 of the Code is
not intended to be used routinely, merely for the
asking. If so used, it will defeat the very purpose of
various amendments to the Code to expedite trials.
But where the application is found to be bona fide
and where the additional evidence, oral or documentary,
will assist the court to clarify the evidence
on the issues and will assist in rendering justice,
and the court is satisfied that non-production earlier
was for valid and sufficient reasons, the court
may exercise its discretion to recall the witnesses or
permit the fresh evidence. But if it does so, it should
ensure that the process does not become a protracting
tactic. The court should firstly award appropriate
costs to the other party to compensate for the
delay. Secondly, the court should take up and complete
the case within a fixed time schedule so that
the delay is avoided. Thirdly, if the application is
found to be mischievous, or frivolous, or to cover up
negligence or lacunae, it should be rejected with
heavy costs.
x x x x x
21. Ideally, the recording of evidence should be
continuous, followed by arguments, without any
gap. Courts should constantly endeavour to follow
such a time schedule. The amended Code expects
them to do so. If that is done, applications for
adjournments, re-opening, recalling, or interim
measures could be avoided. The more the period of
pendency, the more the number of interlocutory
applications which in turn add to the period of
pendency.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO. OF 2016
(CC NO.14061 OF 2016)
GAYATHRI  V M. GIRISH 
Dated:July 27, 2016.

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When court can permit recalling of witness for cross examination?

 I have given due consideration to the rival submissions. It is true that on plain reading of provisions of 0.18 R. 17 of the Code, it appears that only the Court is empowered to recall the witness to put such questions to elicit any clarification. However, the Supreme Court in case of K.K. Velusamy, [2011(3) ALL MR 455 (S.C.)] (supra) had an occasion to consider the provisions of 0.18 R.17 and also the provisions of Section 151 of the Code. Upon considering the said provisions, the Supreme Court in para 9 of the judgment held that, the inherent powers of the court u/s 151 of the Code is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the Court to put such question to elicit any clarifications. The Supreme Court, in para 11 of the judgment has also considered that, the Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a belated stage, after the conclusion of his evidence, if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. It is held that, deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence. In para 12 of the said judgment, the Supreme Court has observed that, in appropriate cases, the Court may exercise its inherent powers u/s 151 of the Code, permitting the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9626 of 2011

Decided On: 18.07.2012

Anand S/o Rangrao Ingle & Anr. Vs. Govind S/o Rangrao Ingle & Ors.

Hon'ble Judges/Coram:
S.S. Shinde, J.

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Whether party can recall witness for cross examination as of right?

 Order 18 Rule 17 of CPC contemplates as under:

               "Court   may  recall  and  examine

         witness:- The Court may at any stage  of

         a  suit recall any witness who has  been

         examined and may (subject to the law  of

         evidence  for the time being  in  force)

         put  such  question to him as the  Court

         thinks fit."

     6.   The  power  of  the  Court  under  this  Rule  is

discritionary, but it ought to be exercised  with  greatest

care only in exceptional circumstances.  In this case,  the

petitioner has mentioned in the affidavit filed in  support

of  the  said I.A.s that he failed to put certain important

questions (tHf;fpw;F njitahd rpy Kf;fpakhd nfs;tpfs;  FWf;F

tprhuidapd;nghJ  tpLgl;Ltpl;ld) and hence  to  re-open  the

evidence of PW6 and recalling him are necessarily required.

The  court  below  found  that  the  petitioner  was  given

sufficient opportunity and hence, it is unwarranted to  re-

open  the  evidence and recall the witness, as required  by

the petitioner herein.

     7.   When  a witness was cross-examined at length  and

no   request   has  been  made  to  defer  further   cross-

examination,  later  a request is made for  further  cross-

examination  of a witness, refusing the same is  justified.

Moreover, the power of the Court under Order 18 Rule 17 CPC

to recall and examine a witness at any stage of the suit is

to  be  exercised in exceptional circumstances.   Where  no

exceptional circumstances have been made out and unless the

reason given by the trial judge could be described as  moon

shine, flimsy or irrational stemmed from any oblique motive

or  purpose,  the  rejection of the application  cannot  be

called  as non-judicial approach and the High Court  cannot

interfere.   In this context, we look into Section  165  of

the Evidence Act, which is as follows:

               "165.     Judge's  power  to   put

         questions  or  order  production.-   The

         Judge  may,  in  order  to  discover  or

         obtain  proper proof of relevant  facts,

         ask  any  question he  pleases,  in  any

         form,  at  any time, of any witness,  or

         of  the parties, about any fact relevant

         or   irrelevant;  and  may   order   the

         production  of  any document  or  thing;

         and   neither  the  parties  nor   their

         agents  shall be entitled  to  make  any

         objection   to  any  such  question   or

         order,  nor,  without the leave  of  the

         Court,   to  cross-examine  any  witness

         upon  any answer given in reply  to  any

         such question;

     8.   In  other angle, when we look into the provisions

of  Order 18 Rule 17 CPC read along with the provisions  of

Section  165 of Indian Evidence Act, it is clear  that  the

power  to  recall and re-examine a witness  is  exclusively

with  that of the Court trying the suit.  The trial  court,

in   this  case  felt  that  re-open/recalling  of  PW6  is

unwarranted.  Incidentally, the time of six months  granted

by  this  Court for the disposal of the said suit was  also

over.

     9.   In view of the above, the reasons assigned by the

trial  court for dismissing the applications for  reopening

the  evidence  and  to  recall  PW6  are  perfectly  valid.

Interference of this is not warranted. 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

                              

                     DATED : 16/11/2007

                              

                           CORAM :

                              

         MR. JUSTICE A. KULASEKARAN

                              

            C.R.P. (PD) Nos.3563 & 3564 of 2007

                             and

                     M.P. No.1 of 2007

V. Shanmugam   V S. Umamaheswaran             

Citation: AIR 2008 (NOC) 646 Mad

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Whether court can permit recalling of witness on ground of change of Advocate?

 The above observations cannot be read as laying down
any inflexible rule to routinely permit a recall on the ground
that cross-examination was not proper for reasons
attributable to a counsel. While advancement of justice
remains the prime object of law, it cannot be understood that
recall can be allowed for the asking or reasons related to mere
convenience. It has normally to be presumed that the counsel
conducting a case is competent particularly when a counsel is
appointed by choice of a litigant. Taken to its logical end, the
principle that a retrial must follow on every change of a
counsel, can have serious consequences on conduct of trials
and the criminal justice system. Witnesses cannot be expected
to face the hardship of appearing in court repeatedly,
particularly in sensitive cases such as the present one. It can
result in undue hardship for victims, especially so, of heinous
crimes, if they are required to repeatedly appear in court to
face cross-examination.

8. In the present case also, one of the grounds for
recalling the witness is change of counsel. It is not permissible.
Witness can not be expected to face the ordeal of appearing in
the Court repeatedly. No acceptable grounds have been made
out for recalling the witness. There is neither any perversity nor
any illegality in the order passed by the learned trial Court.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMMO No. 254/2016
Dismissed on: September 5, 2016

Shri Mohd. Tariq 
V
Jaspal Singh and others 
Coram:
 Mr. Justice Rajiv Sharma, Judge
Citation: 2017 CRLJ 784HP

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Supreme Court: Right to adjournment Vs Right to speedy justice

 In the said case, it has also been held that it is desirable that the

recording of evidence should be continuous and followed by arguments

and decision thereon within a reasonable time. That apart, it has also

been held that the Courts should constantly endeavour to follow such

a time schedule so that the purpose of amendments brought in the

Code of Civil Procedure are not defeated. Painfully, the Court

observed:-

“… In fact, applications for adjournments,

reopening and recalling are interim measures,

could be as far as possible avoided and only in

compelling and acceptable reasons, those

applications are to be considered. We are satisfied

that the plaintiff has filed those two applications

before the trial Court in order to overcome the

lacunae in the plaint, pleadings and evidence. It is

not the case of the plaintiff that it was not given

adequate opportunity. In fact, the materials placed

show that the plaintiff has filed both the

applications after more than sufficient opportunity

had been granted to it to prove its case. During the
entire trial, those documents have remained in

exclusive possession of the plaintiff, still plaintiff

has not placed those bills on record. It further

shows that final arguments were heard on number

of times and judgment was reserved and only

thereafter, in order to improve its case, the plaintiff

came forward with such an application to avoid the

final judgment against it. Such course is not

permissible even with the aid of Section 151 CPC.”

10. In the case at hand, as we have stated hereinbefore, the examination-in-chief

continued for long and the matter was adjourned seven

times. The defendant sought adjournment after adjournment for

cross-examination on some pretext or the other which are really not

entertainable in law. But the trial Court eventually granted permission

subject to payment of costs. Regardless of the allowance extended,

the defendant stood embedded on his adamantine platform

and prayed for adjournment as if it was his right to seek adjournment

on any ground whatsoever and on any circumstance. The non-concern

of the defendant-petitioner shown towards the proceedings of the

Court is absolutely manifest. The disregard shown to the plaintiff's

age is also visible from the marathon of interlocutory applications

filed. A counsel appearing for a litigant has to have institutional responsibility.

The Code of Civil Procedure so command. Applications

are not to be filed on the grounds which we have referred to hereinabove

and that too in such a brazen and obtrusive manner. It is

wholly reprehensible. The law does not countenance it and, if we permit

ourselves to say so, the professional ethics decries such practice.

It is because such acts are against the majesty of law.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO. OF 2016

(CC NO.14061 OF 2016)

GAYATHRI V M. GIRISH 

Dated:July 27, 2016.

Dipak Misra, J.

Citation:2016 SCC online SC744,(2016) 14 SCC142

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