1 2025:CGHC:332 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 3373 of 2024 • Suresh Dolas S/o Kishore Dolas Aged About 46 Years R/o Panchshil Nagar Karjat Gudengi Post Karjat P.S. Karjat District - Raigad (Maharashtra) ... Petitioner(s) versus • State of Chhattisgarh Through The District - Magistrate Raipur Chhattisgarh. ---- Respondent ----------------------------------------------------------------------------------------------- For Petitioner : Mr. N. Naha Roy, Advocate For Respondent-State : Ms. Sunita Sahu, PL. ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 03.01.2025 1. Heard on admission. 2. Admit. 3. With the consent of the parties, matter is heard finally. 4. This petition has been filed under Section 528 of the Bharatiya Nagarika Suraksha Sanhita, 2023 challenging the order dated 02.12.2024 (Annexure A-1) by which learned Special Judge (NDPS), Raipur, (CG) has rejected the application of petitioner filed under Section 311 of 2 Cr.PC seeking recall of the witnesses ie PW-7/Johit Lahre, PW-8/Durgesh Kumar Chandrakar & PW-9/Banshilal Sahu. 5. Learned counsel for the petitioner submits that though the witnesses (PW/7, PW/8 & PW9) were examined before trial Court on 18.01.2023 & 24.02.2023. The petitioner (accused) was unable to appoint the competent Counsel for his defence, therefore, it was expected that the trial Court concerned shall ensure the appointment of competent Counsel on behalf of the petitioner/accused for proper cross- examination of the witnesses, but trial Court instead of taking that recourse made the the petitioner to cross-examine such witnesses, hence, cross-examination of the aforesaid witnesses could not be done properly. On 30.11.2024, after engaging the competent Counsel of his choice, the petitioner/accused made an application under Section 311 of Cr.PC seeking re-examination of the aforesaid witnesses, in order to bring on record correct facts and circumstances, which could not be elicited during cross-examination of aforesaid witnesses on 18.01.2023 & 24.02.2023, however, trial Court by the impugned order has erroneously rejected the said application. Learned Counsel further submits that the trial Court has vide power under Section 311 CrPC to recall and re-examine the witness at any time, therefore, the trial Court ought to have allowed the application filed on behalf of the petitioner under Section 311 of CrPC for recalling the aforesaid witnesses. Rejection of application in the given facts and circumstances of the case would amount to failure of justice and it would also amount to abuse of process of the Court. 3 6. Learned State Counsel opposing the submission of counsel for the petitioner would submit that the witnesses, who are sought to be recalled for re-examination, were already examined and re-examined on 18.01.2023 & 24.02.2023. There is no sufficient ground to recall the aforesaid witness. The learned trial court has rightly rejected the said application for recall of the aforesaid witnesses. 7. Heard learned counsel for parties and perused the depositions of the witnesses placed on record. 8. Perusal of depositions of PW/7, PW/8 & PW/9 shows that they have been examined and cross-examined by the petitioner/accused and not by his Counsel. 9. Trial Court has vide power under Section 311 CrPC to examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case at any time. Section 311 of Cr.PC reads as under :- “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 Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 10. Considering facts of the case, submissions of learned counsel for the parties, pleadings made in the petition, the fact that the witnesses, who are sought to be recalled for re-examination, was examined and cross- examined by the petitioner/accused himself and not by any Counsel on 4 his behalf, the petitioner wants to cross-examine them to prove his defence, further considering Section 311 CrPC and in order to bring on record correct facts and circumstances and also just and proper disposal of the trial, I am inclined to allow this petition. 11.Accordingly, present petition is hereby allowed. Impugned order dated 02.12.2024 (Annexure P-1) is hereby set-aside. Application dated 30.11.2024 filed by the petitioner before the trial Court is allowed. Trial Court concerned is directed to give only one opportunity to the petitioner to cross-examine these witnesses ie (PW-7/Johit Lahre, PW-8/Durgesh Kumar Chandrakar & PW-9/Banshilal Sahu). CC as per rules. Sd/- Sd/- (Arvind Kumar Verma) Judge J/-