Give application for recall of complainant with following case laws so that you will get sufficient time.
Bombay High Court
Vikas S/O Sureshrao Waghmare vs Moreshwar S/O Bhausaheb Kadam on 25 June, 2010
Bench: Shrihari P. Davare
THERE IS ALSO ANOTHER VERY RECENT JUDGMENT OF THE SUPREME COURT BUT WE FEEL THAT IT SHOULD BE GIVEN ONLL AFTER IF THE LOWER COURT IS RELUCTANT TO RECALL OR AT THE BEST IN REVISION AGAINST IF THE LOWER COURT REJECTS THE APPLICATION.
FOLLOWING ARE THE IMPORTANT PORTIONS OF THE LATEST SC JUDGMENT WHICH ALL OTHERS INTERESTED CAN ALSO MAKE USE OF-
Best available evidence must be brought before court to prove a fact’
The trial court cannot deny an accused the right to summon witnesses he/she has cited for examination at any stage of trial, the Supreme Court has held.
“Fair trial entails the interests of the accused, the victim and of society, and therefore, includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional as well as human right, said a Bench of Justices B.S. Chauhan and Ibrahim Kalifulla
Adducing evidence in support of defence was a valuable right. Denial of such right would amount to denial of a fair trial. It was a cardinal rule of the law of evidence that the best available evidence must be brought before the court to prove a fact or a point in issue, the Bench said.
The Cr.PC conferred a very wide discretionary power on the court in this respect. It might summon any person as a witness at any stage of the trial or other proceedings, even suo motu if no application was filed by either of the parties.
CARDINAL CAUTION
“However, the court must satisfy itself that it is in fact essential to examine such a witness or recall him for further examination in order to arrive at a just decision of the case. An application [filed by an accused to summon witnesses] under Section 311 Cr.PC must not be allowed only to fill a lacuna in the case of the prosecution, or of defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties,” Justice Chauhan said, writing the judgment.
In the instant case, Natasha Singh was aggrieved over a trial court order rejecting her application, under Section 311 Cr.PC, to summon certain witnesses. It observed that examination of the witnesses sought to be examined by the appellant-accused was in fact unnecessary, and would in no way assist in arriving at a just decision of the case.
The Delhi High Court upheld the trial court order. The Supreme Court, allowing the appeal against this judgment, directed the trial court to examine the witnesses sought to be examined by Natasha.
