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2019 Supreme(Kar) 419
IN THE HIGH COURT OF KARNATAKA BENCH AT KALABURAGI
K. SOMASHEKAR, J.
Chandrakant @ Kantu – Appellant
Versus
State through Nelogi P.S. Jewargi – Respondent
Criminal Petition No. 200156 of 2019
Decided On : 13-03-2019
Advocate Appeared:
Shivasharana Reddy, Maqbool Ahmed.
Headnote:
Criminal Procedure Code,1973 - Sections 482 and 311 - Protection of Children from Sexual Offences Act, 2012 - Sections 35(1), 33(5), 4 and 6 - Indian Penal Code,1860 - Sections 366(A) and 376(2)(i)(n) - Whether it is essential to the just decision of the case - Complainant is the father of the victim-girl who is aged about 12 years. On 06.12.2017, at about 9.00 p.m. the complainant along with his family members were having food and after having food, his two sons left the house in order to sleep in their field and also to look after the goats. It is stated in the complaint that, on that night, when he woke up at about 3.00 a.m. his daughter/victim was not in the bed. Therefore, he went in search of the victim to the field and there also she was not found. The victim-girl had briefed about the petitioner/accused that he was eve-teasing the victim while she was on the way to her school. The complainant suspecting that the accused who was eve-teasing the victim might have abducted her filed a complaint before the respondent-Police and subsequently, crime came to be registered and thereafter, investigation was taken up by the Investigating Officer and laid chargesheet against the accused for the alleged offences - PW-1 who is the victim-girl was examined-in- chief for the prosecution and on that day, the trial Court has given an ample opportunity to the learned counsel for the accused to cross-examine PW-1. But the learned counsel did not proceed for cross-examination of the said witness – Held, 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 an 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 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 - there is substance in the contention of the learned counsel for the petitioner in seeking intervention of the impugned order passed by the Court below in rejecting the application filed by the accused under Section 311 of Cr.P.C - Section 482 of Cr.P.C. is hereby allowed
K. SOMASHEKAR, J.
1. This criminal petition is filed under Section 482 of Cr.P.C. against the impugned order dated 10.01.2019 passed by II-Additional District and Sessions Judge, Kalaburagi, in Special Case (POCSO) No. 11/2018 rejecting the application filed under Section 311 of Cr.P.C. for recalling PW-1 for the purpose of cross-examination.
2. Factual matrix of the petition are as under:
The complainant is the father of the victim-girl who is aged about 12 years. On 06.12.2017, at about 9.00 p.m. the complainant along with his family members were having food and after having food, his two sons left the house in order to sleep in their field and also to look after the goats. It is stated in the complaint that, on that night, when he woke up at about 3.00 a.m. his daughter/victim was not in the bed. Therefore, he went in search of the victim to the field and there also she was not found. The victim-girl had briefed about the petitioner/accused that he was eve-teasing the victim while she was on the way to her school. The complainant suspecting that the accused who was eve-teasing the victim might have abducted her filed a complaint before the respondent-Police and subsequently, crime came to be registered and thereafter, investigation was taken up by the Investigating Officer and laid chargesheet against the accused for the alleged offences.
3. It is relevant to state that, on 31.03.2018, PW-1 who is the victim-girl was examined-in- chief for the prosecution and on that day, the trial Court has given an ample opportunity to the learned counsel for the accused to cross-examine PW-1. But the learned counsel did not proceed for cross-examination of the said witness. The cognizance of the offence was taken on 12.03.2018. The trial Court has noted the scope of Section 35(1) of the Protection of Children from Sexual Offences Act, 2012 (for short POCSO Act) which clearly says that the evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offences. In the impugned order, the trial Court has also noted the provisions of Section 33(5) of the POCSO Act which clearly says that the victim shall not be called repeatedly to testify in the Court. Even though the learned counsel for the accused is aware of the scope and object of Section 33(5) of the POCSO Act has not yet cross-examined PW-1/victim. The Court below has further observed that if the victim does not support the prosecution, the accused will take advantage and if the victim supports, by hook or crook, the accused will take adjournment and try to win over the victim and her parents. Accordingly, the trial Court rejected the application filed by the accused under Section 311 of Cr.P.C. for recalling PW-1/victim girl for cross-examination.
4. I have heard the learned counsel appearing for the petitioner as well as the learned High Court Government Pleader for respondent and perused the records of the case.
5. Learned counsel appearing for the petitioner contends that the petitioner has nothing to do with the alleged offences and he has been falsely implicated in the alleged crime. The Medical Officer who examined the victim-girl has stated that there were no external injuries on her body. On 31.03.2018 PW-1/victim was subjected for examination-in-chief for the prosecution. On that day, the learned counsel for the accused was out of station and therefore, he was not able to cross-examine PW-1. The trial Court ought not to have dismissed the application filed by the petitioner under Section 311 of Cr.P.C. and dismissal of the said application by the trial Court has resulted in taking away the valuable right of the petitioner. For adjudication of the case, cross-examination of PW-1 is very essential and if the petitioner/accused is not permitted to cross-examine PW-1, it would seriously prejudice his case. On these grounds, learned counsel for the petitioner seeks for intervention with the impugned order passed by the tr
