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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
DEEPAK KUMAR TIWARI, J.
Mohammad Sahid @ Ashif S/o. Late Kamruddin Khan - Petitioner
Versus
State of Chhattisgarh, Through SHO Newai District Durg C.G. - Respondent
Cr.M.P No. 334 of 2023
Decided On : 16-02-2023
Constitution of India,1950 - Article 21 – Criminal Procedure Code,1973 - Section 482 and 311 - Indian Penal Code,1860 - Sections 363, 366 and 376 - POCSO Act, 2012 - Sections 5 & 6 and 33(5) - Evidence Act, 1872 - Section 165 - Offence of Rape – Punishment of kidnapping - Petition has been filed under Section 482 of Cr.P.C. for challenging order - Scope and ambit of Section 311, that the very usage of the words such as, "any court", "at any stage", or "any enquiry or trial or other proceedings", "any person" and "any such person" clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the court in any way. (Para 12).
Finding of the Court: It is well settled that no party in a trial can be foreclosed from correcting errors and if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence - Court should be magnanimous in permitting such mistakes to be rectified - It is also well settled that recalling can be permitted if the evidence appears to be essential for just decision of Court and mere observations for ensuring fair trial is not enough unless there are justifiable reasons to show how far the trial would suffer without recalling. Recalling is not a matter of course and discretion given to Court has to be exercised judicially to prevent failure of justice - Court is of the view that there is no ground to justify the recalling of the prosecutrix for further cross-examination and therefore, order passed by the trial Court is just and proper and does not call for any interference invoking the jurisdiction under Section 482 Cr.P.C.
Result: Petition is dismissed
ORDER :
1. This Petition has been filed under Section 482 of Cr.P.C. for challenging the order dated 05.12.2022 passed by the Additional Sessions Judge, 1st FTC, Special Judge (POCSO Act), Durg in Special Criminal Case POCSO No.57/2022 whereby, the application preferred by the Petitioner under Section 311 Cr.P.C for recalling the prosecutrix was dismissed.
2. Brief facts of the case are that a special Sessions Case is pending consideration against the Petitioner for the offence under Sections 363, 366 and 376 IPC as also under Sections 5 & 6 of the POCSO Act, 2012 (for short 'the Act of 2012'). In the said case, the Petitioner has moved an application on 05.12.2022 for re-cross-examination of the prosecutrix (PW-1), whose statement was recorded on 02.06.2022 and the said application was dismissed by the order impugned.
3. Shri Singh submits that on the earlier occasion, the previous Counsel has not properly cross-examined the prosecutrix regarding her date of birth and age and had, in a very mechanical manner and by adopting superficial method, asked questions. He further submits that as the allegation against the Petitioner is serious in nature and there is stringent punishment under the law to that extent, therefore, re-cross-examination of the prosecutrix is necessary for just decision of the case, therefore, not allowing the application filed by the Petitioner for recalling the prosecutrix is bad in law as there are well settled principles of criminal justice that the client should not suffer due to latches of the Counsel and the trial Court has dismissed the said application stating that the same has been filed by the Petitioner only to fill up the latches of the defense, which is not in accordance with law and the ambit and scope of Section 311 Cr.P.C has been dealt with in the matter of Varsha Garg vs. State of Madhya Pradesh & Ors. reported in 2022 SCC OnLine SC 986 as also in various catena of judgments. He lastly submits that to ascertain the true age of the prosecutrix, further examination of her is necessary, which is beneficial for both sides and Section 33(5) of the Act of 2012 is not absolute, therefore, prays to quash the impugned order and allow the Petition.
4. Per contra, Shri Singh supports the impugned order and submits that Section 311 Cr.P.C cannot be availed for recalling the prosecutrix on the ground that earlier Counsel has not put the questions in proper perspective. He further submits that as the prosecutrix has been examined at length even on the point of age and further, the legislature in its wisdom under Section 33(5) of the Act of 2012 specifically mandates that the Special Court shall ensure that the child is not called repeatedly to testify in the Court and as the Petitioner has also not brought any foundation or material that the age of the prosecutrix recorded by the prosecution is not true, recalling amounts to harassing the prosecutrix which is not proper and therefore, prays to dismiss the Petition.
5. I have heard learned counsel for the parties and perused the documents annexed herewith with utmost circumspection.
6. In the matter of Varsha Garg vs. State of Madhya Pradesh & Ors. (supra), the Supreme Court had, while allowing the application filed by the prosecution under Section 311 Cr.PC for the production of the decoding registers and for the summoning of the witnesses of the cellular companies for that purpose, significantly observed about the scope and exercise of such powers and the relevant paras read as under:-
The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code.
The central legal point established in the judgment is the interpretation of Section 311 of Cr.P.C and the dilution of rigor under Section 33(5) of the POCSO Act once the victim crosses the age of 18....
The main legal point established in the judgment is that the provisions of Section 311 of Cr.P.C. allow a Court to summon a witness if their evidence is essential for the just decision of the case. T....
The power under Section 311 of Cr.P.C. should be invoked to meet the ends of justice, and changing counsel can be a relevant factor in recalling witnesses.
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