Allahabad High Court
Lal Singh vs State Of U.P. And Ors. on 31 October, 2013
Bench: Saeed-Uz-Zaman Siddiqi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?AFR
Court No. - 14
Case :- CRIMINAL REVISION No. - 513 of 2013
Revisionist :- Lal Singh
Opposite Party :- State Of U.P. And Ors.
Counsel for Revisionist :- Alok Srivastava Ii
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Saeed-Uz-Zaman Siddiqi,J.
Heard learned counsel for the revisionist as well as learned A.G.A. for the State and perused the records.
The instant revision has been preferred against the order dated 29.08.2013, passed by learned Additional District & Sessions Judge, Gonda in Sessions Trial No.359 of 2012, arising out of Case Crime No.83 of 2012, under Section 363/366/376 I.P.C. P.s. Kaudiya District Gonda by which the petitioner's prayer for recall of prosecutrix PW3 for further cross-examination under Section 311 Cr.P.C. has been rejected.
A perusal of the impugned order shows that the learned Additional Sessions Judge has not discussed the entire facts of the case and has shown his apprehension by mentioning that "it appears that the defence intends to get the prosecutrix hostile". This apprehension has been expressed by the learned Trial Judge probably on the strength of the allegation contained in the application itself that there was consent of the prosecutrix and prosecution evidence is still going on. Learned counsel for the petitioner states at bar that the petitioner has married with the prosecutrix and his marriage certificate has also been filed in the sessions trial. The learned Sessions Judge has ignored this important aspect of social life. If a lady has married with a person against whom FIR has been lodged for rape by the parents of the prosecutrix and the prosecutrix is a major then the Court must dealt with the matter in a pragmatic manner as demanded by the society.
It is not the discretion but a judicial obligation of a court of law to undo a wrong in the course of administration of justice to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, concediture et id sine qua res ipsa esse non potest. The full import of which is whever anything is authorised, and especially if, as a matter ofduty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is todo real, complete and substantial justice for which it exists. While dealing with a case of this nature, the ground of settlement between the offender and victim must be taken into account which is not the same thing as compounding of offence. They are different and not inerchangeable. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 Cr.P.C. and the court is guided solely and squarely. A judge must act in order to ensure that a message be transmitted to the society at large that the judicial system is functioning to secure the ends of justice. While ensuring the ends of justice, the rights of the victim, the rights of the accused and the rights of the society at large must be kept alive and a court of law must ensure that the demarcation line i.e. Lakshman Rekha between the rights of the three categories must not overlap each other. It is the common experience of the courts of law that in rape cases, sometimes the adult members of opposite sex fall in love with each other against the wishes of their family members, who usually lodge FIR and prosecute the criminal litigation to the detriment of the adult members of such marriage. In such cases, the nature of gravity must be balanced by the Courts with the settlement between the accused and the prosecutrix. If there is a compromise between the offender and the victim, possibility of conviction is remote and bleak and continuance of criminal case would put the accused to great oppression and prejudice and extreme injustice will be caused to him by not permitting him to cross-examine the prosecutrix, who is the ring master of the whole litigation. It would be unfair or contrary to the interest of justice to ignore the statement of the prosecutrix coupled with the factual matrix of the case. The continuance of criminal proceedings in such cases would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrong doer. Securing ends of justice includes what is practicable, expedient and convenient with practical consequences, rather than the theories and ideas i.e. realistic approach to historical events purely in terms of practical lessons which is in accordance with the orderly course of business and in a dogmatic manner, for which social and behavioral aspects have to be applied by the courts as courts are parts of the society and cannot live on Ivory Towers. The accused-petitioner has not prayed to the learned Trial Judge for re-trial/ de novo trial. The simple prayer is recalling the witnesses for further cross examination in exercise of powers conferred under Section 311 Cr.P.C. For guidance, the learned Trial Court shall take note of the directions contained in the case of Gian Singh vs. State of Punjab and Anr. [(2012) 10 SCC 303], Deepak Khinchi vs. State of Rajasthan [(2012) 5 SCC 284] and Zahira Habibullah Sheikh & Anr. v. State of Gujarat and Ors. [(2004) 4 SCC 158].
Whim of a Judge cannot prevail over the society. In Gurdev Kaur & others v. Kaki & others, AIR 2006 SC 1975, the Hon'ble Apex Court has given a note of caution to such orders which are stigmatic on the justice delivery system in the mind of the public at large and has held; "Judges must administer law according to the provisions of law. It is the bounden duty of Judges to discern legislative intention in the process of adjudication. Justice administered according to individual's whim, desire inclination and notice of justice would lead to confusion, disorder and chaos."
In view of the discussions as made above, the criminal revision is allowed. The impugned order dated 29.08.2013 passed by learned Additional District & Sessions Judge, Gonda passed in Sessions Trial No.359 of 2012 is set aside. Learned Lower Court is directed to summon the prosecutrix for further cross-examination, without delay and dispose of the Trial in view of her statement, in accordance with law.
Order Date :- 31.10.2013/Nitesh
