HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
CRIMINAL PETITION No.10137 of 2023
O R D E R:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') by the petitioner/complainant - State to set aside the order dated 04.09.2023 in Crl.M.P.No.46 of 2023 in S.C.No.99 of 2018 passed by the Fast Track Special Sessions Court For Expeditious Trial and Disposal of Rape and POCSO Act Cases, Ranga Reddy District at Shadnagar.
2. Heard the learned Assistant Public Prosecutor for petitioner - State and learned counsel for the respondent/accused. Perused the record.
3. It is the specific contention of the learned Assistant Public Prosecutor appearing for the petitioner - State that initially the accused has filed a petition vide Crl.M.P.No.9 of 2023 in S.C.No.99 of 2018 under Section 311 of Cr.P.C to recall the victim and other two witnesses i.e. PWs 1 to 3 for further cross examination. It is contended that the prosecution has filed a detailed counter in the said petition 2 reporting to the Court that PWs 1 to 3 were cross examined thoroughly on every aspect and there is no need of further cross examination; that PW3/victim girl is a physically handicapped girl and her both legs are paralyzed due to polio and she cannot stand or sit without the support of others and that PWs 1 and 2 are daily wage earners and therefore, prayed to dismiss the said petition. It is further contended that the Court below has considered the counter of the prosecution and dismissed the said petition on 03.07.2023 with a finding that the victim is paralytic of lower limbs and she cannot stand or sit without the help of others and moreover, the other witnesses are daily wagers and there is no ground to recall PWs 1 to 3. It is further contended that challenging the said dismissal order, the accused has not preferred any revision or appeal and the said orders have become final. It is contended that subsequently, another petition i.e. Crl.M.P.No.46 of 2023 was filed under Section 311 of Cr.P.C by the accused to recall the victim and other witnesses i.e. PWs 1 to 3, 8 and 9 for further cross examination and the said petition was allowed on 3 04.09.2023 and hence, he prayed to set aside the said orders.
4. A perusal of the record reveals that on dismissal of the petition i.e. Crl.M.P.No.9 of 2023 filed under Section 311 of Cr.P.C, the accused has again filed another petition i.e., Crl.M.P.No.46 of 2023 under Section 311 of Cr.P.C to recall the witnesses for further cross examination. The grounds mentioned in the said petition are that due to oversight, the accused has not put several questions and some points are not clarified and even proper suggestions were not put to the witnesses. In the said petition, it is also mentioned about the dismissal of Crl.P.No.9 of 2023 on 03.07.2023, which was filed to recall PWs 1 to 3. The trial Court has allowed the said petition with the following observations:
"7. ...... it is obvious the bar under Section 33(5) POCSO Act in recall of victim girl and other witnesses is not absolute where the circumstances warrants to further the cause of justice they can as well be recalled. Earlier counsel was legal aid counsel and the present counsel was engaged by the accused, after cross examination of PW1 to 3, 8 and 9. In fact, the petitioner held back the clarifications and circumstances of inconsistencies and contradictions to 4 be elicited on the witnesses being recalled on the ground that it may alert the prosecution".
5. The Apex Court in catena of judgments has held that change of counsel cannot be a ground to allow the petition filed under Section 311 of Cr.P.C for recall of witnesses. There are no specific reasons mentioned in the petition filed under Section 311 of Cr.P.C warranting for recall of the witnesses. Therefore, this Court is of the considered view that the trial Court ought not to have allowed the petition, particularly taking into consideration that the victim girl is paralytic of lower limbs.
6. Accordingly, the Criminal Petition is allowed and the order dated 04.09.2023 in Crl.M.P.No.46 of 2023 in S.C.No.99 of 2018 passed by the Fast Track Special Sessions Court For Expeditious Trial and Disposal of Rape and POCSO Act Cases, Ranga Reddy District at Shadnagar, is set aside.
Miscellaneous applications pending, if any, shall stand closed.
__________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 12.10.2023 gvl 5 HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY CRIMINAL PETITION No.10138 OF 2023 Date: 12-10-2023 GVL