Nafees vs State Of Madhya Pradesh

The applicant has preferred this petition under Section 482 of Code of Criminal Procedure, 1973 (for short 'the Code') against order dated 22/11/2018 passed by Vth Additional Sessions Judge, Indore in Special S.T. No. 167/2017, whereby the application filed on behalf of the applicant/accused under Section 311 of the Cr.P.C. for recalling the witnesses has been rejected.

The facts giving rise to this petition are that applicant is facing trial for offence under Sections 377 and 511 of the IPC alongwith Section 5, 6, 7 and 8 of the Protection of Children from Sexual Offences Act, 2012.

On 11/12/2017, the charges were framed against the applicant for the aforesaid offences and the case was first fixed for recording the evidence on 17/01/2018 and thereafter on 31/01/2018, 31/03/2018 and 11/05/2018, however, on these dates no prosecution witnesses were appeared. On 02/07/2018, the victim and his mother were appeared and their cross-in-chief was recorded. On this date the Court has appointed Smt. Trupti Verma as amicus curie on behalf of the applicant, who cross-examined the aforesaid witnesses and thereafter they were discharged. Applicant/accused moved an application under Section 311 of the Cr.P.C. for recalling the above witnesses on the ground that the applicant was represented through Smt. Trupti Verma, amicus curie, who has without taking any instruction from the applicant cross-examined the prosecution witnesses, therefore, he could put his defence in proper manner.

The trial Court after considering the facts and circumstances of the case and the ground for recalling the witnesses, rejected the application. Being aggrieved with the impugned order, applicant has filed the present petition.

Learned counsel for the applicant contending that the statement of the prosecutrix and her mother were recorded before the Sessions Judge on 02/07/2018, however, they were not properly cross-examined by then counsel representing the applicant, therefore, it cause serious prejudice to the defence of the applicant/accused. Hence, he be permitted to recalling the above witnesses for cross-examined on certain points.

Learned Public Prosecutor opposed the petition and prayed for its rejection.

Having heard the learned counsel for the parties and perused the record.

From the perusal of the documents it appears that the cross-examination of the prosecutrix and her mother was recorded by Special Judge, Indore on 02/07/2018 and they have been cross-examined by Smt. Trupti Verma, who was appointed as amicus curie on the same day by the Court. The grievance of the applicant/accused is that the previous counsel had not put the relevant questions nor given suggestions which were required to be asked, therefore, he could not put his defence in proper manner, therefore, he be permitted to recalling the above witnesses for cross-examination on certain relevant points.

The relevant Section 311 of the Cr.P.C. reads as under:-"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 be essential to the just decision of the case."

The Section is manifestly in 2 parts; whereas use "may" in first part and "shall" in second part and in compliance gave full discretionary powers to Court, to enable it to hold an enquiry during trial or proceedings in the Court to recall and cross-examined any person whose evidence has already been recorded.

It is well settled that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case.

Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial.

In P. Sanjeeva Rao vs. State of A.P.- AIR 2012 SC 2242, the scope of Section 311 Cr.P.C. has been highlighted by making reference to an earlier decision of this Court and also with particular reference to the case, which was dealt with in that decision in paragraph 13, which is as under:-

"13. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC 430. The following passage is in this regard apposite:

"In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible."

Keeping the above principles in mind, when this Court examine the case on hand, at the very outset, it will have to be stated that the trial Court, while passing the impugned order has completely ignored the principal objectives with which the provision under Section 311 Cr.P.C. has been brought into the statute book.

Hence, the present petition filed by the applicant is allowed and the impugned order dated 22/11/2018 passed by Vth Additional Sessions Judge, Indore in Special ST No. 167/2017 is hereby set aside. The trial Court is directed to recall the victim and his mother and afforded one opportunity to the defence for cross-examination of these witnesses at the cost of applicant/accused person.

Let a copy of this order be sent to the concerned trial Court for information and necessary compliance.