Teman Lal Sahu vs State Of Chhattisgarh

This petition is filed under Section 482 of Cr.P.C. against the order dated 11.11.2021 passed by the learned Court of Additional Sessions Judge, Fast Track Court (POCSO) Act, Gariyaband, District-Gariyaband (C.G.) in Special Criminal Case No. 24/2021 whereby the learned trial court has rejected the application filed by the petitioner under Section 311 of the Code of Criminal Procedure, 1973 (for short 'the Code') for recalling the prosecutrix for her further cross-examination.

Petitioner is facing trial under Section 376 (2)(N) of IPC & Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') and Section 3 (2)(v) of SC/ST Act. On 24.04.2019, victim/ prosecutrix has been examined by the earlier counsel. During the pendency of special trial, the petitioner filed application under Section 311 of Cr.P.C. for re-examination of the prosecutrix (PW-1) on the ground that earlier counsel did not ask questions which are important for defence of the petitioner but the learned trial court dismissed the application. Hence, this petition filed by the petitioner.

Learned counsel for the petitioner submits that the impugned order passed by the learned court is bad in law and deserves to be set aside. Learned trial court has committed illegality and impropriety by not considering the submissions of the petitioner regarding the prayer of Section 311 of Cr.P.C. and learned trial court has committed an error of law by not considering the grievances of the petitioner by dismissing the application. He further submits that the victim/prosecutrix and her mother did not make their objection regarding grant of bail to the petitioner and, thereafter, marriage of the prosecutrix and petitioner was solemnized on 27.11.2021. In such a situation, on the basis of the new circumstances of the case, it would be appropriate in the interest of justice to get the victim re-examined in relation to the letter of Ex. P/3. Therefore, further, cross-examination of the victim/prosecutrix, is necessary to make reasonable and justifiable defence of the petitioner. In support of his argument, learned counsel for the petitioner has placed reliance in the matters of Zahira Habibullah Sheikh & Another Vs. State of Gujarat & Others reported in AIR 2006 SCW 1340, State of Haryana Vs. Ram Mehar & Others reported in AIR 2016 SC 3942 and Pintu Yadav Vs. State of Chattisgarh passed in Criminal Revision No. 653/2021 by this Court.

Learned counsel for the State supported the impugned order.

I have heard counsel for the parties and perused the material available on record including the impugned order.

Hon'ble Apex Court in the case of Zahira Habibullah Sheikh & Another Vs. State of Gujarat & Others reported in AIR 2006 SCW 1340 has held in paras 24, 25 & 26 as under:-

“24. In this context, reference may be made to Section 311 of the Code which reads as follows:

"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 it to be essential to the just decision of the case."

The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.

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 for 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 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 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.

As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.”

Petitioner is facing trial under Section 376 (2)(N) of IPC & Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') and Section 3 (2)(v) of SC/ST Act. Free and fair trial is sine qua non of Article 21 of the Constitution of India and the right to get a fair trial is not only a basic fundamental right but a human right also, therefore, in the interest of justice, the petition is allowed with a condition that petitioner will pay process fee for recalling the victim/prosecutrix (PW-1) and also to pay traveling expenses and other requisite expenses as per law to her. It is made clear that if any defects or lapse found in payment of process fee, the opportunity for recalling the aforesaid witness shall stand cancelled.

The petition is thus, allowed to the extent indicated hereinabove.

Needless to mention that after cross-examination of the victim, the prosecution be afforded opportunity for re-examination of her in that regard, if required.