Point of Law
powers to recall a witness under Section 311 Cr.P.C. is a very wide and could be exercised for the just decision of a case.

JUDGMENT :

1. Heard Sri Vinay Kumar Advocate, Sri S.K. Sharma Advocate, learned counsels for the applicant, learned A.G.A. for the State and perused the materials and documents on record.

2. The present application under Section 482 Cr.P.C has been filed with a prayer to quash the order dated 04.10.2019 passed by the learned Special Judge (POCSO)/Additional Session Judge, Kanpur Nagar, in Session trial No. 9 of 2013, arising out of Case Crime No. 466 of 2013, under Sections 376, 504, 506, 406 I.P.C., P.S. Kalyanpur, District-Kanpur Nagar, whereby the application under Section 311 Cr.P.C filed by the applicant to recall PW-2, prosecutrix for cross-examination has been dismissed.

3. The applicant is an accused under Sections 376, 504, 506 and 406 I.P.C, presently facing trial. The statement under Section 164 Cr.P.C of PW-2, prosecutrix was recorded on 02.11.2015 and thereafter on account of nonpresence of the prosecutrix and mostly at the instance of prosecution; the case got continuously adjourned from 19.12.2015 to 06.10.2018. Thereafter on 03.11.2018 the prosecution proved the statement of the prosecutrix, however, since the counsel of the applicant was not present for cross-examination neither any adjournment application was filed by the defence counsel, as such the concerned court below closed the opportunity of defence to cross-examine the PW-2, prosecutrix vide same order dated 03.11.2018. Subsequently, on 20.12.2018 an application under Section 311 Cr.P.C. was filed, for recall of PW-2 for cross-examination, which has been rejected under the impugned order dated 04.10.2019.

4. It has been argued by learned counsel for the applicant that the applicant and other accused are facing a grave charge of commission of rape and the court below denied the opportunity of cross-examination of the star witness, thus, the testimony of the prosecutrix would remain unrebutted creating grave injustice and prejudice to the applicant. It is further argued that in fact the applicant has been attending the court regularly barring few occasions as is evident from the order-sheet, however, the record would demonstrate that the prosecution itself was proceeding in a lackadaisical manner and on the date when impugned order was passed there was some negligence and remissness on the part of his lawyer for which the applicant cannot be made to suffer and therefore the closure of an opportunity to cross-examine by the trial court that the defence counsel willingly did not appear to cross-examine PW-2, prosecutrix is unfounded. The opportunity to recall PW-2 was moved on 20.11.2018 itself but the same remain pending and was decided by the impugned order dated 4.10.2019.

5. After carefully perusing the order-sheet on record, I find that the examination-in-chief of the prosecutrix, PW-2 was recorded on 2.11.2015, however, as the statement recorded under Section 164 Cr.P.C. was not on record and the same could not be proved the prosecution sought adjournment and on the request of the prosecution the case was adjourned. Order-sheet also reflects that for about three years the prosecution did not adduce any evidence and produced the prosecutrix on 3.11.2018. It appears that her statement recorded under Section 164 Cr.P.C. was proved by the prosecution and on the very same day as the counsel for the applicant did not appear for cross-examination the court closed the opportunity to cross-examine the prosecutrix. Learned counsel has further argued that till date the evidence of prosecution is going on and therefore the applicant may be provided at least an opportunity to cross-examine PW-2, prosecutrix for the just decision of the case and set-aside the impugned order.

6. In my considered opinion, not affording an opportunity, particularly in view of the fact that the lawyer of the applicant was not available to cross-examine the prosecutrix before the concerned Court below on the date fixed, is not justified.

7. In the case of Rafiq and others vs. Munshilal and ot