Ramu alias Ramautar vs State of M.P.

Brij Kishore Dube, J.—Heard on the question of admission and perused the record. This petition u/s 482 of the Code of Criminal Procedure, 1973 (For short, the Code) is preferred by the petitioner herein/accused, Ramu alias Ramautar for quashing the order dated 22/03/13 passed by the Special Judge S.C., & S.T., (Prevention of Atrocities) Act, Guna in Special Sessions Trial No. 35/12 by which an application u/s 311 of the Code for recalling the prosecutrix (P.W. 1), P.W. 2 Ganga Bai and P.W. 4 Harprasad has been rejected on the ground that sufficient opportunity had been given for cross-examination of the witnesses.

Learned counsel for the petitioner submits that the petitioner is facing trial under Sections 363, 366 and 376 of IPC and during the trial, Legal Aid counsel, Shri Jitendra Dhakad was appointed to defend him but he has put only 07 questions at the time of cross-examination of the prosecutrix. Shri Jitendra Dhakad, the counsel appeared on behalf of the petitioner did not put any question in regard to the factum of age and consent of the prosecutrix, however, the prosecutrix was major and a consenting party and she willingly remained with the petitioner.

The limited prayer of the learned counsel for the petitioner is that the prosecutrix alone may be permitted to be further cross-Mis. Cr. Case No. 3990/13 (Ramu alias Ramautar Vs. State of M.P.,) examined.

The learned Panel Lawyer supported the impugned order passed by the learned Court below.

It is transpired from a perusal of the record that that the petitioner herein/accused, Ramu alias Ramautar is facing a criminal trial for the offence punishable under Sections 363/34, 366/34, 323 (two counts), 456, 376(1), 506-Part-II & 344 of IPC and 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act in Special Sessions Trial No. 35/12 before the Special Judge, Guna. On 15/01/13, the prosecutrix was examined as P.W. 1. Shri Jitendra Dhakad, Advocate appeared on behalf of the petitioner and put only 07 questions on behalf of the petitioner/accused at the time of her cross-examination. Certain questions which are required to be put to the prosecutrix could never be put to her.

On going through the cross-examination and the chief-examination of the prosecutrix, P.W. 1 in the light of the seriousness of the offence charged, it is apparently clear that there is no effective cross-examination upon her and, therefore, if the petitioner is not allowed for further cross-examination it would amount to denial of justice and the defence of the accused be adversely affected which may lead to his conviction.

The power to recall the witness for examination or cross-examination u/s 311 of the Code is discretionary and vested in the Trial Judge but that power has to be exercised by Mis. Cr. Case No. 3990/13 (Ramu alias Ramautar Vs. State of M.P.,) proper exercise of discretion.

The application u/s 311 of the Code has been preferred by the petitioner before the Trial Court on 23/02/13 and the trial is still pending before the Trial Court.

In these circumstances, after going due consideration to the facts of the case and the statement of the prosecutrix and also the submissions of the learned counsel for the petitioner, I am of the view that the order passed by the Court below suffers with material irregularity and tantamount to non-exercise of the jurisdiction and the interest of justice demands that the petitioner deserves an opportunity of further cross-examination of the prosecutrix, P.W. 1.

Consequently, the impugned order dated 22/03/13 passed by the Trial Court to the extent of recalling the prosecutrix for further cross-examination is hereby quashed and it is directed that the Trial Court shall summon the prosecutrix, P.W. 1, on payment of process fee by the petitioner within a period of ten days from today by fixing a date for further cross-examination subject to payment of compensatory cost of 1,000/- (Rupees one thousand only) to the aforesaid witness, prosecutrix. With the aforesaid direction, this petition stands disposed of.