The duty of the court to examine essential witnesses for the just decision of the case, as highlighted in Section 311 of Cr.P.C and Section 33(5) of POCSO Act.

JUDGMENT :

This criminal revision is directed against the order dated 13.01.2023 passed by F.T.C./Additional Sessions Judge/Special Judge (POCSO), Udham Singh Nagar in Special S.T. No.163/2021, whereby the application moved by the revisionist under Section 311 of Cr.P.C. has been dismissed.

2. Heard on admission.

3. Learned counsel for the revisionist would submit that the revisional court has committed illegality in rejecting the application moved by the revisionist u/s 311 of Cr.P.C. for further cross-examination of the prosecutrix. He would submit that father of the prosecutrix was examined as PW2 and during his cross-examination this fact came forward that father of prosecutrix has not lodged any report in the matter nor the prosecutrix had told anything to him regarding the alleged incident and that he did not know as to what was written in the F.I.R. and the report was submitted in the police station by the villagers. He would further submit that recalling PW1 (prosecutrix) for cross-examination is essential for fair and just decision of the case as the father who is sole guardian of the victim is showing unawareness about the incident and that earlier counsel engaged by the revisionist could not ask these relevant questions from the witnesses in cross-examination. To buttress his submissions, counsel for the revisionist has placed reliance on a judgment of Hon’ble Madhya Pradesh High Court in re “Jagmohan Palasar vs. State of Madhya Pradesh”, AIR (Doc 95 Madhya Pradesh).

4. On the other hand, Mr. Dinesh Chauhan, Brief Holder appearing for the State would submit that there is no illegality, impropriety or incorrectness in the impugned order and the revision is liable to be dismissed as such.

5. Perusal of the impugned order shows that the victim is aged 7 years and her examination-in-chief was completed on 27.10.2021 and thereafter she has been cross examined at length by the counsel for the accused/revisionist. While dismissing the application, the trial court observed that there cannot be any definite standard of the ability of a lawyer to ask questions and it would be an endless process because in future another lawyer will come and will move the application on the same ground. Trial court further observed that there is no justification for summoning the victim again on the basis of appointment of a new lawyer and if the witness/victim is recalled then it is likely to have adverse effect on her mental and physical health and development and it would also cause irreparable loss to her and cited the case of “Nazar Hussain Vs. State of Uttarakhand and another”, Criminal Misc. Application No.1917 of 2022.

6. Before the Trial Court, in support of application moved u/s 311 Cr.P.C., it was argued by counsel for the revisionist that there were some questions, which could not be asked from the prosecutrix which were very important and necessary for adjudication of trial.

7. In this context, reference may be made to Section 311 of the Criminal Procedure Code which reads as follows :

“311. Power to summon material witness, or examine person present.—Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

8. Section 33(5) of The Prevention of Children from Sexual Offence Act, 2012 would also be relevant for the purpose, which reads as under:-

“33. Procedure and powers of Special Court. –

(5) The Special Court shall ensure that the child is not called repeatedly to testify in the Court.”

9. Hon’ble Apex Court in re “Godrej Pacific Tech. Ltd. Vs. Computer Joint India Ltd.” (2008) 11 SCC 108 has held as under:-

“6. …..The section is manifestly in two parts. Whereas the word used in the first part is "ma