1 SUN, J Crl.P.No.4307 of 2023 APHC010298632023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3604] WEDNESDAY, THE 16th DAY OF SEPTEMBER 2026 PRESENT THE HONOURABLE SMT JUSTICE SUNITHA GANDHAM CRIMINAL PETITION NO: 4307/2023 Between: 1. KAKANI MADHAVA, S/O. RAMANAIAH AGE 35 YEARS, R/O. H. NO. 3-81, HARIJANAWADA CHINNA CHERUKURU VILLAGE, T. P. GUDUR MANDAL SPSR NELLORE DISTRICT ...PETITIONER/ACCUSED AND 1. THE STATE OF ANDHRA PRADESH, REP BY ITS PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI, THROUGH THE STATION HOUSE OFFICER THOTAPALLI GUDUR POLICE STATION, 'TC1--P-SOOSIKTZ, SPSR NELLORE DISTRICT 2. KOLLU KARUNA KUMARI, D/O. LATE KOLLU RAMANAIHA, AGE 28 YEARS, R/O. S.C.COLONY, CHINA CHERUKURU VILLAGE, T.P. GUDUR MANDAL, SPSR NELLORE DISTRICT. RESPONDENT NO.2 IS IMPLEADED AS PER COURT ORDER DATED 23.08.2023 IN I.A.NO.2 OF 2023 IN CRL.P.NO.4307 OF 2023. ...RESPONDENT/COMPLAINANT(S): Petition under Section 437/438/439/482 of Cr.P.C and 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Courtpleased to grant stay of all further proceedings in C.C. No. 446 of 2018 on the file of the Spl. Judicial Magistrate of First Class for Railways, Nellore pending disposal of the above Criminal Petition in the interest of justice and pass 2 SUN, J Crl.P.No.4307 of 2023 IA NO: 1 OF 2023 Petition under Section 482 of Cr.P.C and 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased pleased to grant stay of all further proceedings in C.C. No. 446 of 2018 on the file of the Spl. Judicial Magistrate of First Class for Railways, Nellore pending disposal of the above Criminal Petition in the interest of justice and pass IA NO: 2 OF 2023 Petition under Section 482 of Cr.P.C and 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased Pleased to direct to implead the Proposed Respondent / Complainant as Respondent No. 2 in CRLP No. 4307 of 2023 in the interest of justice and pass Counsel for the Petitioner/accused: 1. KAMBHAMPATI RAMESH BABU Counsel for the Respondent/complainant(S): 1. PUBLIC PROSECUTOR (AP) The Court made the following: 3 SUN, J Crl.P.No.4307 of 2023 THE HONOURABLE SMT JUSTICE SUNITHA GANDHAM CRIMINAL PETITION NO: 4307/2023 This petition is filed by the petitioner/accused to quash the order dated 20.06.2023 in Crl.M.P.No.221 of 2023 in C.C.No.446 of 2018 passed by the Special Judicial Magistrate First Class for Railways, Nellore. 2. Case of the petitioner is thus: Basing on the report of the de facto complainant, a case in Crime No. 287 of 2017 is registered of the offences under Sections 354A, 417, 506 read with 34 of the Indian Penal Code (hereinafter referred to as „the Code‟) against the petitioner/accused and after completion of investigation, police laid charge sheet under Section 354A, 417 and 506 of the Code. The same is registered as a case in C.C.No.446 of 2018 and pending on the file of Special Judicial Magistrate First Class for Railways, Nellore. During trial, prosecution examined the de facto complainant as PW1 and she was also cross-examined by the learned counsel for the petitioner/accused, however, during the course of cross-examination, some material questions are not put to PW1, and it is relevant to conduct further cross-examination in respect of the evidence dated 12.11.2017 that when she went to attend calls of nature in their village of Chinnacherukuru, accused committed the offence and LW6 has witnessed the incident. Since it is incumbent on the part of the petitioner to cross-examination in respect of the aforementioned evidence, it is just and necessary to recall PW1. 3. At the culmination of inquiry and after hearing both sides, the learned Special Judicial Magistrate First Class for Railways, Nellore dismissed the petition. Feeling aggrieved by the said order dated 20.06.2023, petitioner/accused filed this petition urging the following grounds of appeal. 4 SUN, J Crl.P.No.4307 of 2023 4. The order dated 20.06.2023 is illegal, irregular, improper and contrary to law and is liable to be dismissed, the trial court dismissed the petition on misconception of factual and legal aspects, and the trial court ought to have seen that further cross-examination of PW1 is very much essential for proper adjudication, the trial court ought to have seen that the petitioner explained the reason for recalling PW1 and the trial court committed error in holding pleas raised by the accused are not the ground to entertain the petition, and with other formal grounds prayed to quash the order passed by the learned trial court. 5. Heard Sri Kambhampati Ramesh Babu, learned counsel for the petitioner and learned Assistant Public Prosecutor. 6. As seen from the record, basing on the report of PW1/defacto complainant, a case in Crime No.287 of 2017 is registered of the offence under Sections as stated supra, and after completion of investigation, police laid charge sheet of the said offences against the petitioner/accused and during trial, de facto complainant is examined as PW1 and learned counsel for the accused also conducted cross-examination. As rightly argued by the learned Assistant Public Prosecutor, PW1 was examined in chief on 24.9.2019 and she was cross-examined by the learned counsel for the petitioner/accused at length on 18.11.2019, and as per the version of the learned counsel for the petitioner, they didn't verify the last sentence of deposition of PW1 and as such, it is incumbent on their part to conduct cross- examination in respect of that portion also. At the end of chief examination, PW1 had stated that on 12.11.2017, when she went to attend calls of nature in their village, accused committed the offence and LW6 has witnessed the said incident. 7. In this regard, it is to be noted that the first part of Section 311 of Code of Criminal Procedure gives purely discretionary authority to a court and enables it at any stage of inquiry, trial or proceeding under the Code: (a) to 5 SUN, J Crl.P.No.4307 of 2023 summon anyone as witness, or (b) to examine any person present in court, or (c) to recall and re-examine any person whose evidence has already been recorded and the second part is mandatory and compels the court to take any of the aforementioned steps if the internal evidence appears to be essential to the just decision of the case. While dealing with Section 311 of Code of Criminal Procedure, Hon'ble Apex Court in Zahira Habibullah H Sheikh v. State of Gujarat1, held at page No.392, para 27 thus: “27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 of the significant expression that occurs is ‘at any stage of any inquiry or trial or other proceeding under this Code’. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” 8. Further in State of Tripura v. Panna Ahmed2, Hon'ble Apex Court held that the witness cannot be expected to face hardship of appearing in court repeatedly, particularly in sensitive cases and it can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination. It is also established principle of law that Section 311 Cr.P.C cannot be used merely to fill lacuna in the defence case and the power to recall a witness is wide, but it must be exercised judiciously and sparingly, where the additional evidence is genuinely essential for arriving at a just decision. The scope and object of the 1 2006 3 SCC 374 2 2026 SCC Online SC 960 6 SUN, J Crl.P.No.4307 of 2023 provision is to enable the court to determine the truth and to render a just decision after discovering all relevant factors and obtaining proper proof of such facts, to arrive at a just decision of the case and the power must be exercised judiciously and not capriciously or arbitrarily. 9. Coming to the facts of the case at hand, the alleged offences are under Sections 354A, 417 and 506 of the Code. The victim/PW1/defacto complainant was examined twice before the trial court i.e. on 24.09.2019, she was examined in chief, and subsequently on 18.11.2019, she was cross- examined at length by the learned counsel for the petitioner. The other ground refuting the request of the petitioner is that after giving evidence before the trial court, PW1 married again and now she has been residing at Bengaluru and it is not just and proper to recall her again, to face cross-examination before the trial court. 10. It is also significant that the petitioner has not demonstrated before this Court how the proposed further cross-examination is indispensable for arriving at a just decision in the case. A mere assertion that certain questions were not put to the witness earlier cannot be treated as sufficient to exercise the inherent jurisdiction of this Court, particularly when the witness had already been cross-examined at length. The power under Section 311 Cr.P.C. is not intended to provide a party with an opportunity to repair omissions or improve its case after completion of cross-examination. 11. The learned trial Court considered the request made by the petitioner and declined to recall PW.1. Nothing has been placed before this Court to show that the said discretion was exercised arbitrarily, capriciously or without application of judicial mind. On the contrary, having regard to the fact that PW.1 had already been cross-examined at length and that the request was occasioned by an omission on the part of the defence, the order of the learned trial Court does not call for interference. 7 SUN, J Crl.P.No.4307 of 2023 12. Further, the passage of considerable time from the examination and cross-examination of PW.1 is also a relevant circumstance. The submission that PW.1 is now residing at Bengaluru cannot, by itself, determine the issue; however, it reinforces the need for caution before directing recall of a witness in the absence of a demonstrated necessity for such further evidence. The interests of a fair trial require a balance between the right of the accused to effectively defend the case and the need to avoid unnecessary and repeated examination of a witness. 13. In view of the foregoing reasons, this Court finds no illegality, irregularity or perversity in the order dated 20.06.2023 passed by the learned Special Judicial Magistrate of First Class for Railways, Nellore, in Crl.M.P.No.221 of 2023 in C.C.No.446 of 2018. The petitioner has failed to establish that recall of PW.1 is essential for the just decision of the case. Consequently, the present Criminal Petition is devoid of merit and is liable to be dismissed. 14. In the result, this criminal petition is dismissed. As a sequel thereto, pending miscellaneous petitions, if any, shall stand closed. ________________________ SUNITHA GANDHAM, J Dt: 16.09.2026 Vns