Deepak Shah @ Deepak Kumar vs State of Uttarakhand & another

Sudhanshu Dhulia, J.

Mr. Dinesh Chauhan, Brief Holder for the State/respondent no.1.

The applicant before this Court is facing trial under Section 376 of IPC and under Section 5/6 of the Protection of Children from Sexual Offences

Act, before the learned Special Judge/Sessions Judge, Tehri Garhwal. The applicant has challenged the order dated 27.08.2018 passed by the trial

court whereby the Prosecution Witness No. 5 has been recalled for re-examination.

The crucial question before the Court is as to the determination of the age of the prosecutrix. According to the prosecution, the prosecutrix was a

child at the time of the incident. PW-5 who is the Principal of Government Inter College Garkhet, Tehri Garhwal was examined as prosecution

witness on 03.07.2017. Although a photocopy of the mark-sheet of Class Xth of the prosecutrix was available on the record but since it was not

proved, therefore an application was moved by the prosecution for recalling the witness PW-5 in order to verify the veracity of such a document. The

application moved by the prosecution was allowed by the court below using its power under Section 311 of CrPC. Section 311 of CrPC reads as

under:-

“Section 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 examine; 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.â€​

A bare perusal of the aforesaid provision shows that powers have been given to the Court to summon any person as a witness or recall and re-

examine any such person who appears to be essential for the just decision of the case. These powers have to be read with the additional powers of

the Presiding Officer given under Section 165 of the Evidence Act, 1872. Section 165 of the Evidence Act, 1872 reads as under:-

“Section165. Judge’s power to put questions or order production.- The Judge may, in order to discover or to obtain proper proof of relevant

facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the

production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor,

without the leave of the Court, to cross -examine any witness upon any answer given in reply to any such question:

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:

Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such

witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the question were asked or the document were

called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149;

nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.â€​

The case of the applicant is that these powers cannot be used to cover up the weakness of the prosecution. To this extent, learned counsel for the

applicant is right, but if the witness is recalled in order to reach to the truth of the matter which seems to be the case here, there seems to be no

anomaly if it is done.

A reading of the aforesaid provisions shows that these powers have been given to the court in order to reach to the truth of the matter, which is the

ultimate goal in every trial. In case the court below has come to the conclusion that for the just decision of the case, the recall of the witness (PW-5)

is necessary, no anomaly can be found in that order.

In view thereof, the criminal miscellaneous application filed under Section 482 of CrPC fails and it is hereby dismissed.