Recall of witness

Adinath@Avinash Patil (Querist) 26 August 2009 This query is : Resolved
In pvt.complaint complainant filed examination chief affidavit, thereafter case fixed for cross examination but complainant remain absent & no cross order is passed by court therafter next date complainant produced additional docuements and filed apllication for recall complainant.Is Section 311 of Cr.p.c.is applicable

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K D Pande (Expert) 27 August 2009
If complainant remains absent for cross examination then no question arose to pass no cross order . In fact the accused ought to have filed application u/s. 256 of Cr.P.C. for dismissal of the complaint the complaint. In case when the accused failed to cross to complainnat then court can pass no cross order against accused.The complainant ought to have file application for setting aside no cross order if the court allow his application then no question will arise to file application u/s. 311 of Cr.P.C.The court has every power under this section to recall any witness at any stage, however same cannot be called to fillup lacuna in the case.The maintainabilty of this application depend upon grounds mentioned in the application for recall of witness.In my view the court wrongly passed passed no cross order infact order of forfiet of right of evidence of complainant ought to have been passed.