Order on Board

02.02.2023

1. This Petition has been filed under Section 482 Cr.P.C against the order dated 09.01.2023 passed by the Additional Sessions Judge/ I/FTSC (POCSO), Bilaspur in Special Criminal Case No. (POCSO ACT)/49/2022, whereby the application filed by the Petitioner under Section 311 Cr.P.C for recalling 3 witnesses for re-cross-examination has been dismissed.

2. Brief facts of the case are that FIR has been registered against the Petitioner at PS Sirgitti, Bilaspur on 23.02.2022 with an averment that he has sexually exploited a minor girl during the period commencing from 07.02.2018 to 30.07.2021, therefore, offence under Section 376 IPC as also under Sections 4 & 6 of the POCSO Act has been registered against him. During trial, the prosecution has examined 3 witnesses namely Dipti Chhatterjee, Niyati Agrawal and Mamta Tiwari, who are the Officers of Government Children’s Home, Bilaspur. During pendency of the trial, FSL report has been received wherein, stains of semen were found owing to which, the Petitioner has filed an application for re-cross-examination of the said 3 witnesses, which has been dismissed by the order impugned.

3. Shri Gandhi, learned Counsel for the Petitioner submits that the impugned order is bad in law as the FSL report has been received on 26.09.2022 but the prosecution witnesses i.e. Dipti Chhatterjee has been examined on 06.06.2022 and Niyati Agrawal and Mamta Tiwari have been examined on 06.07.2022 and the Counsel engaged therein also not examined the FSL report, therefore, for just decision of the case, the said application ought to have been allowed. He placed reliance on the judgment rendered in the matter of V.N. Patil vs. K. Niranjan Kumar and Others reported in (2021) 3 SCC 661 as also on Pidika Sambaru v. State of Odisha, (Orissa), in Criminal Revision No.490/2021 dated 04.03.2022.

4. On the other hand, Shri Wasim Miyaan, learned State Counsel supports the order impugned and submits that during trial, the Petitioner has made a complaint for which, a domestic enquiry was conducted, which has no relevance in the context of this case.

5. Heard learned Counsel for the parties and perused the documents annexed herewith with utmost circumspection.

6. In the matter of Zahira Habibullah Sheikh (5) and Another v. State of Gujarat and Others reported in (2006) 3 SCC 374, the concept underlying Section 311 Cr.P.C has been considered at para

27, which reads as under:-

“27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.”

7. In the matter of State (NCT of Delhi) vs. Shiv Kumar Yadav, reported in (2016) 2 SCC 402, it has been held that “….certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is