Summary
Two prosecution witnesses sought re-examination about fourteen months after completed testimony, alleging police pressure and seeking to exonerate accused persons. The Court held that the deceased’s brother could invoke Article 136 and that the unexplained delayed recall lacked justification. It reversed the High Court’s permission and directed the trial court to disregard testimony recorded pursuant to that permission.
Issues
- Whether the deceased’s brother could challenge the recall order under Article 136.
- Whether unexplained delayed witness applications alleging earlier police pressure justified recall under Section 311.
Provisions considered
- Section 311, Code of Criminal Procedure, 1973Wide recall power serves the just decision of the case and requires strong, valid, recorded reasons, judicial discretion and consideration of delay and witness hardship. (¶ 16–22)
Held
- Article 136 confers discretionary appellate power rather than an ordinary right of appeal. The appellant, a brother of the deceased and prosecution witness, was an aggrieved person with a bona fide connection to the case and could seek special leave; permission and leave had been granted. (¶ 7–15)
- Recall is not routine. Essentiality to a just decision governs, and a general assertion of fair trial is insufficient without tangible reasons. The application must be bona fide, with delay explained and competing considerations weighed. (¶ 17–21)
- The witnesses had supported the prosecution and undergone lengthy cross-examination. The trial court found no pressure, and their applications after fourteen months supplied no explanation for delay. The Court concluded they had been won over and upheld refusal of recall. (¶ 22)
- Because re-examination had occurred after the High Court order, the trial court was specifically directed to proceed without considering that subsequent testimony. This did not decide guilt in the pending trial. (¶ 23–24)
Result
Appeal allowed; High Court order set aside. Trial court to disregard the re-examination of PWs 4 and 5 recorded pursuant to that order and proceed with the case. Pending applications disposed of.