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IN THE HIGH COURT OF ALLAHABAD
YOGENDRA KUMAR SRIVASTAVA, J.
Jeeshan @ Jeeshan Ansari – Appellant
Versus
State of U.P. and Another – Respondents
Application U/s 482 No. 17844 of 2021
Decided On : 01-12-2021
Protection of Children from Sexual Offences Act, 2012 - Section ¾ - Criminal Procedure Code, 1973 - Section 482 – Penal Code, 1860 - Sections 363, 366, 376 (2) – Quash of Criminal proceedings - Order dismissing the application filed by the applicant herein under Section 311 Cr.P.C. has taken notice of the fact that the examination-in-chief of PW-2 (victim) was recorded on 21.01.2021 and on the same date the counsel for the accused-applicant had cross-examined her. The court has also recorded that the accused-applicant has sought recall of the witness who has been already examined on the earlier date as PW-2 - Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case.
Findings of the court :
Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
Result : Application dismissed
JUDGMENT :
YOGENDRA KUMAR SRIVASTAVA, J.
1. Heard Sri. M.P. Singh Yadav, holding brief of Sri. Mohammad Waseem, learned counsel for the applicant and Sri. Vinod Kant, learned Additional Advocate General along with Sri. Arvind Kumar, learned Additional Government Advocate appearing for the State-opposite party.
2. The present application under Section 482 Cr.P.C. has been filed seeking to quash the order dated 12.08.2021 passed by the Additional Sessions Judge/Special Judge (POCSO Act) Court No. 1, District Bareilly in Special Case No. 10 of 2020, arising out of Case Crime No. 154 of 2018 (State vs. Jeeshan) under Sections 363, 366, 376 (2) IPC and Section 3/4 of Protection of Children from Sexual Offences Act, 2012 [POCSO Act] Police Station Hafizganj, District Bareilly on the application filed by the applicant under Section 311 Cr.P.C. dated 10.08.2021 and also to direct the court below to re-consider the application filed by the applicant under Section 311 Cr.P.C. dated 10.08.2021.
3. The order dated 12.08.2021 dismissing the application filed by the applicant herein under Section 311 Cr.P.C. has taken notice of the fact that the examination-in-chief of PW-2 (victim) was recorded on 21.01.2021 and on the same date the counsel for the accused-applicant had cross-examined her. The court has also recorded that the accused-applicant has sought recall of the witness who has been already examined on the earlier date as PW-2. It has also been taken note that the cross-examination of the other witnesses is continuing and information regarding the questions which are sought to be put to PW-2, can be elicited from the other witnesses. Considering that the matter is pending since the year 2018 an inference has been drawn that the application filed under Section 311 Cr.P.C. is only to delay the proceedings. The court below further taking note that the trial is under POCSO Act which contains a provision for concluding the proceedings expeditiously, has concluded that there was no reason to allow the application under Section 311 Cr.P.C. seeking recall of the witness and accordingly the same has been rejected.
4. Learned Additional Advocate General supporting the order passed by the court below has pointed out that the testimony of the PW-2 having already been recorded long back and no plausible ground having been made out by the accused-applicant for recall of the witness, the application under Section 311 Cr.P.C. has rightly been turned down. Learned Additional Advocate General also points out that the POCSO Act is a special Act which contains a specific provision for expeditious disposal of trial.
5. On the scope of powers to be exercised under Section 311 Cr.P.C. reliance has been placed on the decision of this Court in Ajmer vs. State of U.P. 2021 (115) ACC 409 and also a recent decision dated 22.11.2021 in Manish vs. State of U.P. and Another [Application U/s 482 No. 23428 of 2021, decided on 22.11.2021].
6. The facts as noticed by the court below in the order dated 12.08.2021 whereunder the application under Section 311 has been rejected, indicate that the examination-in-chief of the victim PW-2 was recorded on 29.01.2021 and her cross-examination was also completed by the counsel for the accused-applicant on the same date. The court below has also noticed that the questions which are proposed to put to the aforesaid witness, as stated in the application under Section 311, have already been put to the witness earlier on behalf of the defence counsel. Further, the fact that the cross-examination of the other witnesses was still continuing and that the information with regard to the age of the brothers and sisters and other family members of the victim could be elicited from them, has also been taken into consideration to draw a conclusion that the application under Section 311 had been filed only with a view to delay the proceedings.
7. Another fact which has been taken note of is that the matter is pending since the year 2018 and the proce
The main legal point established in the judgment is the need for strong and valid reasons to recall witnesses, the protection of child victims from repeated testimony, and the discretion of the court....
Power to summon material witnesses under Section 311 Cr.P.C. which falls under Chapter XXIV containing general provisions as to inquiries and trials has been held to confer a very wide power on court....
The power under Section 311 Cr.P.C. must be exercised judiciously and for strong and valid reasons, ensuring a fair trial and the just decision of the case.
Merely on asking the application under Section 311 of the Cr.P.C. cannot be allowed as there has to be sufficient reasons behind it.
The court emphasized that the power under Section 311 of the Cr.P.C. must be exercised judiciously, ensuring that it serves the ends of justice and is not based on arbitrary claims of coercion.
The wide powers conferred upon the courts under Section 311 CrPC to summon or recall a witness at any stage if their evidence is essential for a just decision.
The court emphasized that the power under Section 311 Cr.P.C. must be exercised judiciously to ensure a fair trial and should not be used merely to fill gaps in evidence.
The main legal point established is the importance of balancing the rights of the accused and the prosecutrix under Section 311 Cr.P.C. and Section 33(5) of the POCSO Act in ensuring a fair trial.
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