Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Megh) 319

IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
W. Diengdoh, J.
Biresh Barman - Appellant
Versus
State of Meghalaya & Anr. - Respondents
Crl. Petn. No. 95 of 2021
Decided On : 18-02-2022

Advocates appeared:
Mr. S. Panthi, Advocate, for the Petitioner; Mr. K.P. Bhattacharjee, GA, for the Respondent

The court affirmed the power under Section 311 Cr.P.C to re-examine witnesses to ensure just decision-making, emphasizing the prohibition of arbitrary use of this power.

Headnote:(A) The Protection of Children from Sexual Offences Act, 2012 - Section 9(n) - Code of Criminal Procedure, 1973 - Section 311 - The court recalled a hostile complainant for re-examination based on discrepancies in signature to ensure justice, citing powers under Section 311 Cr.P.C. (Paras 3, 8, 20).

(B) The essence of Section 311 Cr.P.C is to allow the court to summon or recall witnesses for a just decision; this power must be exercised judiciously and not arbitrarily, avoiding filling of prosecution lapses. (Paras 10, 20).

(C) Re-examination of the complainant was warranted to resolve signature discrepancies, emphasizing the necessity of a fair examination in sexual assault cases. (Paras 6, 12, 20).

Facts of the case:
The petitioner filed for quashing an order allowing the re-examination of a complainant who had initially turned hostile in a case of sexual assault involving a minor relative.

Findings of Court:
The court upheld the lower court's authority and necessity to re-examine the complainant to ensure justice, reinforcing that no abuse of process occurred.

Issues: The main issues included the validity of re-examining a hostile witness after a significant delay and the necessity of ensuring judicial process integrity.

Ratio Decidendi: The court concluded that exercising the power to recall a witness is within judicial discretion and is essential for a fair trial, dismissing claims of misconduct.

Result: Petition dismissed as devoid of merits.

Table of Content
1. background facts of the case and initial proceedings. (Para 2 , 3)
2. court's reasoning for recalling the witness. (Para 4 , 10 , 12)
3. petitioner's arguments against recalling the witness. (Para 5 , 6)
4. legal standards for witness recall under cr.p.c. (Para 9 , 18 , 19)
5. final decision and dismissal of petition. (Para 22 , 23)

JUDGMENT

1. Matter taken up via hybrid mode.

2. Heard Mr. S. Panthi, learned counsel for the petitioner who has submitted that the petitioner has approached this Court with this application, seeking to set aside and quash the impugned order dated 07.10.2021 passed by the learned Special Judge, (POCSO), Shillong in Spl. (POCSO) Case No. 8/2014 whereby the court was pleased to recall the complainant for further examination and for which the examination-in-chief was recorded by the court.

3. Briefly stating the facts, Mr. Panthi, has submitted that pursuant to an FIR dated 29.03.2013, a case was registered as Rynjah P.S. Case No. 21(3)2013 u/s 9(n)/10 of the POCSO Act, 2012. On investigation being completed and charge sheet filed, the matter proceeded for trial before the learned Special Judge (POCSO), Shillong. Thereafter, evidence was led by the prosecution and on conclusion of the same, the statement of the accused/petitioner was recorded u/s 313 Cr.P.C and the matter was posted for final argument on a number of dates. It may be mentioned that the complainant when she was initially summoned for recording of her evidence in court, had turned hostile and was accordingly, treated so by the court.

4. However, the learned Special Judge (POCSO), Shillong in course of hearing of the matter and on perusal of the FIR, found that the signature of the complainant therein did not tally with the signature of the same on her deposition. The court exercising powers u/s 311 Cr.P.C took suo moto action and recalled the complainant for re-examination. Accordingly, summon was issued to the complainant and a date was fixed for her re-examination. She was then re-examined on 08.11.2021, however the cross examination was fixed for another date.

5. Mr. Panthi has argued that the learned Special Judge (POCSO) by exercising power u/s 311 Cr.P.C for recalling a witness who has turned hostile and by conducting a fresh examination, that too after five years having lapse from the time she was initially examined, is nothing but to fill up the lacuna in the prosecution's case, which shows complete non application of judicial mind.

6. It is also submitted that the learned Special Judge, (POCSO) vide the impugned order dated 07.10.2021 had specifically sought for the clarification of the complainant's signature, which according to the learned Special Judge, (POCSO) did not tally. However, without any application seeking recall of the witness, the complainant's evidence was freshly recorded, which is an abuse of the due process of law.

7. In support of his case, Mr. Panthi has cited the case of Rajaram Prasad Yadav v. State of Bihar Anr: (2013) 14 SCC 461 at paragaph 23 and the case of Ratanlal v. Prahlad Jat Ors: (2017) 9 SCC 340 at paragraphs 20 21 as well as the case of Y. Ramesh v. State of Telangana in Criminal Petition No. 828 and 945 of 2020.

8. Per contra, Mr. K.P. Bhattacharjee, learned GA appearing for the State respondent in support of the impugned order has submitted that the background of the case is that the complainant's sister who is a minor of about 11 years had complaint of being sexually assaulted on several occasions by the accused/petitioner herein. It is also to be noted that the accused/petitioner is the husband of the complainant and the victim is his own sister-in-law and they were staying together in a two-room accommodation consisting of a bedroom and a kitchen and the three of them would sleep in the bedroom with the victim sleeping on the bed while the complainant and the accused/petitioner would sleep on the floor. At times, when the complainant was not in the room or had gone out of the room, th