Full Judgment
B.K. Rathi, J.
1. The petitioners are accused in Sessions Trial No. 310 of 2002 pending in the Court of Additional Sessions Judge, Etah. The petitioners moved an application under Section 311, Cr.P.C. to recall PWs. 1 and 4 for further cross-examination.
2. It is alleged that by mistake the witnesses could not be cross-examined regarding the place of incident and manner of firing.
3. It is also alleged that the petitioners have now engaged another counsel who found that the witnesses have not been cross-examined on material points.
4. It is further alleged that in the cross cases for offence under Section 307, I.P.C. the parties have compromised; that in the present case which is for offence under Section 307, I.P.C. the parties have also compromised and therefore, it is necessary to resummon the witnesses for further cross-examination. It was also disclosed by the petitioners that the witnesses have no objection in recalling them for further cross-examination. However, the learned Additional Sessions Judge has rejected the application for recall of the witnesses by the impugned order dated 2-2-2002. aggrieved by it, the present petition has been preferred.
5. I have heard Sri A. Kumar Singh, learned counsel for the petitioners and the learned A. G. A.
6. It has been argued by the learned counsel for the petitioners that the witness could not be cross-examined fully and has to be cross-examined on several points. This argument of the learned counsel for the petitioners does not appear to be correct. No specific point has been mentioned on which the witnesses are required to be further cross-examined. The allegations show . that this case has also been compounded and, accordingly, the witnesses are required to be recalled so that they may turn hostile. The purpose for recalling the witnesses for further cross-examination is that they may resile from the earlier statement by which they have supported the prosecution case.
7. The law has made that offence under Section 307, IPC as not compoundable. Therefore, the offence for which the petitioners are being tried cannot be compounded legally. What is not legally permissible cannot be permitted to be done by the Court indirectly. Therefore, the Court has rightly refused to recall the witnesses for further cross-examination.
8. Learned counsel for the petitioners has referred to the decision of the Apex court in S.R. Sinha v. Mrinal Sengupta 2001 SCC (Cri) 1581. In this case, request was made by the prosecution to recall a witness for further examination. It was found that further examination will not cause prejudice to the accused persons. Request was, therefore, allowed and the Apex Court it observed that the Court is not debarred from examining a witness even at a stage subsequent to recording of the statement of the accused.
9. There is no quarrel with the principle of law laid down in this case and the Court is fully empowered under Section 311 Cr.P.C. to recall any witness at any stage, provided it is considered expedient and in the interest of justice. However, in the present case, the witnesses are intended to be recalled to achieve a result which is not legally permissible and in such a case, the Court has rightly refused to recall the witnesses.
10. Learned counsel for the petitioners has also referred to the decision of the Apex Court in Mahesh Chand v. State of Rajasthan AIR 1988 SC 2111 where the Apex Court permitted to compound the offence under Section 307, I.P.C. However, later on this case has been held by the Apex Court to have not been decided in accordance with law in the case of S.N. Mohanty v. State (1999) 3 JT (SC) 408 : AIR 1999 SC 2181.
11. The offence under Section 307 I.P.C. is not compoundable and therefore, the witnesses should not be recalled for further cross-examination so that they may resile from the earlier statement and deny the prosecution case resulting in the compounding of the offence.
12. I do not find any illegality in the impugned order.
The petition is, accordingly, dismissed.