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2018 Supreme(P&H) 1541
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Augustine George Masih, J.
Shabbir Ahmad Laway @ Shabbir Kala – Petitioner
Versus
Central Bureau of Investigation, Chandigarh – Respondent
CRM-M No.3659, 6218, 5412 of 2018
Decided On : 16-05-2018
For the Petitioner:Mr. Karambir Singh Nalwa, Advocate, Mr. Rajat Khanna, Advocate
For the Respondent:Mr. Sumeet Goel, Advocate
The main legal point established in the judgment is that the court has wide powers under Section 311 Cr.P.C. to summon, examine, or recall any person as a witness if their evidence appears to be essential to the just decision of the case. However, the court must exercise these powers judiciously and in accordance with the principles of natural justice.
Headnote:
Section 482 Cr.P.C. - Recall of Prosecutrix - Information Technology Act, 2000, Immoral Traffic (Prevention) Act, 1956, Ranbir Penal Code - The court dismissed the petitions challenging the orders dated 17.01.2018 and 25.02.2016 passed by the Special Judge, CBI Court, Chandigarh, which refused to recall the prosecutrix for further examination. The petitions were filed by the accused based on the alleged change of circumstances and new facts emerging during the trial. The court held that the new facts were not new and had always been the stand taken by the accused in their defense. The court also found that the prosecutrix was not under threat or pressure from the CBI and that the alleged application received through post was dismissed after due consideration. The court concluded that the petitions were a last-ditch attempt to delay the proceedings and dismissed all three petitions.
Fact of the Case:
The petitions were filed under Section 482 Cr.P.C. challenging the orders dated 17.01.2018 and 25.02.2016 passed by the Special Judge, CBI Court, Chandigarh, which refused to recall the prosecutrix for further examination. The petitions were based on the alleged change of circumstances and new facts emerging during the trial.
Finding of the Court:
The court found that the new facts were not new and had always been the stand taken by the accused in their defense. The court also found that the prosecutrix was not under threat or pressure from the CBI and that the alleged application received through post was dismissed after due consideration. The court concluded that the petitions were a last-ditch attempt to delay the proceedings and dismissed all three petitions.
Issues: The issues revolved around the alleged change of circumstances and new facts emerging during the trial, the alleged threat or pressure on the prosecutrix, and the dismissal of the alleged application received through post.
Ratio Decidendi: The court held that the new facts were not new and had always been the stand taken by the accused in their defense. The court also found that the prosecutrix was not under threat or pressure from the CBI and that the alleged application received through post was dismissed after due consideration. The court concluded that the petitions were a last-ditch attempt to delay the proceedings and dismissed all three petitions.
Final Decision: The court dismissed all three petitions challenging the orders dated 17.01.2018 and 25.02.2016 passed by the Special Judge, CBI Court, Chandigarh, which refused to recall the prosecutrix for further examination.
AUGUSTINE GEORGE MASIH, J.
By this order, I propose to decide three petitions preferred under Section 482 Cr.P.C. which were taken up for hearing together at the request of counsel for the parties as they arise out of the same trial but challenging two different orders.
2. In CRM-M No.3659 of 2018 titled as Shabbir Ahmad Laway @ Shabbir Kala Verus Central Bureau of Investigation, Chandigarh and CRM-M No.6218 of 2018 titled as Mohammad Ashraf Mir and others Versus Central Bureau of Investigation, Chandigarh, challenge is to the order dated 17.01.2018 passed by the learned Special Judge, CBI Court, Chandigarh, whereby application dated 15.01.2018 preferred by the petitioners under Section 311 Cr.P.C. for recall of PW-1 Y (name withheld)- prosecutrix, for further examination, stands dismissed.
3. In CRM-M No.5412 of 2018 titled as Y (name withheld)- prosecutrix Versus Central Bureau of Investigation, Chandigarh, challenge has been posed by the petitioner-prosecutrix to the order dated 25.02.2016 passed by the learned Special Judge, CBI Court, Chandigarh, dismissing her application requesting for her re-examination sent through post which was received in the Court on 30.10.2015.
4. This Court would first proceed to decide two petitions, where the challenge is to the order dated 17.01.2018 i.e. CRM-M No.3659 of 2018 titled as Shabbir Ahmad Laway @ Shabbir Kala Verus Central Bureau of Investigation, Chandigarh and CRM-M No.6218 of 2018 titled as Mohammad Ashraf Mir and others Versus Central Bureau of Investigation, Chandigarh.
5. Briefly the facts are that FIR No.20/2006 dated 14.03.2006 was registered at Police Station Shaheed Gang, Srinagar, under Section 67 of the Information Technology Act, 2000. Statement of the prosecutrix was recorded on March 15th/16th, 2006, followed by supplementary statement on 04.05.2006. Thereafter a Notification was issued by the Government of India on 09.05.2006 entrusting the investigation of the case to the Central Bureau of Investigation (hereinafter referred to as 'CBI'). On 10.05.2006, CBI registered RC No.1(S)/2006/SCR-III/New Delhi, under Section 67 of Information Technology Act, 2000, Sections 3, 4, 5, 6, 7 of Immoral Traffic (Prevention) Act, 1956 and Sections 376, 292, 34 Ranbir Penal Code.
6. Special leave petition was preferred by CBI before the Hon'ble Supreme Court praying for transfer of the trial outside the State of Jammu and Kashmir, which petition was allowed and the trial was transferred to the Court of District and Sessions Judge, Chandigarh. Charge-sheet was filed against the petitioners and thereafter the trial proceeded. Prosecutrix appeared before the trial Court and was examined as PW-1 on 07.04.2007 and thereafter cross-examined on 24.04.2007, 25.04.2007, 26.04.2007 and 27.04.2007.
7. An application under Section 311 Cr.P.C was filed by one of the co-accused namely K.C. Padhi on 19.12.2012 followed by another application dated 05.04.2013 filed by another co-accused namely Mohammad Ashraf Mir for recalling PW-1 (prosecutrix) for re-examination as the prosecution had given up mother-Rafeeqa and husband-Irfaan Ahmad Khan of the prosecutrix as witnesses. These applications were considered by the learned Special Judge and dismissed by order dated 22.01.2014. The said order was challenged by K.C. Padhi only in CRM-M No.27028 of 2014 titled as K.C. Padhi Versus State through Central Bureau of Investigation (CBI), Sector 30, Chandigarh, which was dismissed by this Court vide order dated 28.03.2017. Mohammad Ashraf Mir did not challenge the order dated 22.01.2014 passed by the trail Court rejecting his application.
8. An application purported to be sent through post by PW-1 (prosecutrix) was received by the trial Court on 30.10.2015, wherein it was stated that the prosecutrix had given her statement in Court earlier under pressure and threat of CBI and, therefore, prayed that she be re-examined in the case. The Special Judge, CBI Court, Chandigarh, considered the said letter as an
