Rohit Kumar Dubey vs State Of Chhattisgarh

This Petition has been filed under Section 482 of Cr.P.C. for challenging the order dated 10.05.2022 passed by the Additional Sessions Judge FTC (POCSO), Kondagaon, District Kondagaon in Special Sessions Case (POCSO) No.10/2019 whereby, the application preferred by the Petitioner under Section 311 Cr.P.C for recalling the prosecutrix for further cross-examination, was dismissed.

Brief facts of the case are that charge sheet has been filed against the Petitioner for the offence under Section 376 IPC as also under Sections 4 & 6 of the POCSO Act for which, the prosecutrix was examined on 13.02.2020. Thereafter, the Petitioner had moved an application for recalling the prosecutrix for further cross-examination on 08.04.2022 by engaging another Counsel, which was dismissed by the impugned order. Hence this Petition.

Shri Agrawal submits that the allegation against the Petitioner is serious in nature and there is stringent punishment under the law to that extent, therefore, re-cross-examination of the prosecutrix is necessary for just decision of the case, therefore, not allowing the application filed by the Petitioner for recalling the prosecutrix is bad in law as there are well settled principles of criminal justice that the client should not suffer due to latches of the Counsel and the trial Court has dismissed the said application, which is not in accordance with law and the ambit and scope of Section 311 Cr.P.C has been dealt with in the matter of Varsha Garg vs. State of Madhya Pradesh & Ors reported in 2022 SCC OnLine SC 986 as also in various catena of judgments. He lastly submits that to find out the truth and for just decision, further cross-examination of the prosecutrix is necessary so that proper adjudication of the case can be made therefore, prays to quash the impugned order and allow the Petition.

Per contra, Shri Bajpai supports the impugned order and submits that Section 311 Cr.P.C cannot be availed for recalling the prosecutrix on the ground that earlier Counsel has not put the questions in proper perspective. He further submits that as the prosecutrix has been examined at length even on the point of age and further, the legislature in its wisdom under Section 33(5) of the Act of 2012 specifically mandates that the Special Court shall ensure that the child is not called repeatedly to testify in the Court. He lastly submits that the application was moved after more than 2 years of examination of the prosecutrix to protect the trial, therefore, recalling amounts to harassing the prosecutrix, which is not proper and therefore, prays to dismiss the Petition.

I have heard learned counsel for the parties and perused the documents annexed herewith with utmost circumspection.

In the matter of State (NCT of Delhi) vs. Shiv Kumar Yadav and Another 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 not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined.”

In the matter of Varsha Garg vs. State of Madhya Pradesh & Ors (supra), the Supreme Court had, while allowing the application filed by the prosecution under Section 311 Cr.PC for the production of the decoding registers and for the summoning of the witnesses of the cellular companies for that purpose, significantly observed about the scope and exercise of such powers and the facts of the present case are distinguishable from that of the cases cited above, which do not apply herein.

Reverting back to the facts of the present case, after perusing the statement of the prosecutrix and the application preferred by the Petitioner/accused for recalling the prosecutrix for further cross-examination, it is evident that the prosecutrix has been examined at length on 13.02.2020 and further considering the mandate of POCSO Act and only change of Lawyer is no ground to recall the prosecutrix, this Court is of the view that there is no ground to justify the recalling of the prosecutrix for further cross-examination and therefore, the order passed by the trial Court is just and proper and does not call for any interference invoking the jurisdiction under Section 482 Cr.P.C.

Resultantly, the Petition being bereft of any merits is accordingly dismissed at motion stage.