Manoj Kumar vs State Of U.P.And Another
2022 Latest Caselaw 3888 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 92
 
Case :- APPLICATION U/S 482 No. - 12111 of 2022
 
Applicant :- Manoj Kumar
 
Opposite Party :- State Of U.P.And Another
 
Counsel for Applicant :- Amit Rai
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Manish Kumar,J.

The present application under Section 482 Cr.P.C. has been preferred for setting aside the order dated 20.04.2022 rejecting the application preferred by the applicant under Section 311 Cr.P.C. by the Additional Session Judge/Special Session Judge (POCSO Act), Bijnor in Special Session Trial No. 99 of 2016 arising out of case crime no. 276 of 2016, under Sections 363, 366 IPC and Section 7/8 of POCSO Act, Police Station Mandawar, District Bijnor.

Brief facts of the case as per the prosecution story is that on 20.05.2016 at about 07.00 A.M. while the informant along with his wife went to Jungle for collecting wood, their 16 year old daughter who was alone at home and when they came back from the Jungle, they saw that Manoj Kumar (the applicant) was taking his daughter on the motor cycle and on shouting, the neighbours had joined the informant in chasing Manoj Kumar but unable to stop him. The applicant enticed the daughter of the informant and ran away with her.

Learned counsel for the applicant has submitted that after the recovery of the victim, her statement was recorded under Section 161 Cr.P.C. where she had stated that she herself left her home on her own sweet will and the applicant had not made any effort to outrage her modesty. It is further submitted that when the statement was recorded under Section 164 Cr.P.C. before the Magistrate, the victim had taken a U-turn from her earlier statement and had made allegations against the applicant. The applicant for the purposes of confirmation with her statement recorded under Section 161 Cr.P.C. had given an application under Section 311 Cr.P.C. but the same was rejected by the court below due to which the court below may not reach to the just decision of the case.

On the other hand, learned AGA has submitted that the victim was cross-examined by the learned counsel for the applicant in detail on two different dates i.e. 24.09.2019 & 10.10.2019 and after closing the evidence and recording the statement of the witnesses, the case was fixed twice for the appearance of the applicant for the purposes of recording his statement under Section 313 Cr.P.C. and only after the issuance of non bailable warrants, the application under Section 311 Cr.P.C. was moved on behalf of the applicant. This practice adopted by the applicant is nothing but delaying tactics just to linger the proceedings and there is no illegality in the order dated 20.04.2022 passed by the court of Additional Session Judge/Special Session Judge (POCSO Act), Bijnor. If the material contradiction or ambiguity is found in the prosecution evidence, the applicant would be entitled to the benefit of doubt.

After hearing learned counsel for the respective parties and going through the record, the position which emerges out is that the object and purpose of Section 311 Cr.P.C. is that there may not be failure of justice on account of mistake of either party in bringing the available evidence on record or leaving ambiguity in the statement of the witnesses examined from either side. Hon'ble the Supreme Court in the case of Swapan Kumar Chatterjee vs. Central Bureau of Investigation [2019 (14) SCC 328] has held that the power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. It has further been held that the power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of process of law. The said position has been affirmed by Hon'ble the Supreme Court by placing reliance on the above mentioned judgment in SLP (Crl.) No. 8965 of 2018. (V.N.Patil vs. K. Niranjan Kumar & Ors.) passed on 04.03.2020.

Hon'ble the Supreme Court in the case of Rajaram Prasad Yadav vs. State of Bihar & Anr. [(2013) 14 SCC 461] in para 17.10 has held that the exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. As per the law discussed above and as per the admitted facts of this case, full opportunity was provided to learned counsel for the applicant before closing the evidence and full opportunity was provided to cross-examine the victim. Learned counsel for the applicant has cross-examined the victim in detail, which is not disputed by the applicant in the present case. The reason indicated in the application under Section 311 Cr.P.C. moved by the applicant for re-examination of the victim i.e. for the purposes of confirmation with her statement recorded under Section 161 Cr.P.C. as she had changed her stand while recording her statement or testimony under Section 164 Cr.P.C. The applicant in his application under Section 311 Cr.P.C. has stated that the victim may be re-examined for confirming her statement under Section 161 Cr.P.C. The relevant portion of the application under Section 311 Cr.P.C. is quoted hereinbelow:-

"अतः श्रीमान जी से प्रार्थना है कि गवाह पी० डब्लू ० -२ (आयुषी) को धारा 311 सी० आर० पी० सी० के बयान को कन्फर्म कराने की कृपा करे.

सवाल- पी० डब्लू ० -२ (आयुषी) से उसके द्वारा दिए गए बयान अंतर्गत धारा 161 सी० आर० पी० सी ० को कन्फर्म कराना। "

The opportunity was available with the learned counsel for the applicant at the time of cross-examination before the court below for confirmation with the statement of the victim. The victim has specifically stated that the statements given before the Police and under Section 164 Cr.P.C. before the Magistrate were under the threat given by the applicant-Manoj Kumar to kill her and her father. During the cross-examination, the victim has stated the same reason as mentioned above regarding the statement recorded under Section 164 Cr.P.C. It has specifically been stated by the victim that before the Magistrate she had given a wrong statement due to threat given by the applicant. After perusal of the testimony of the victim before the Special Session Judge, POCSO Act, Bijnor and the cross-examination made by counsel appearing on behalf of the applicant, it is clear that regarding the contradictions and the statements, the questions were asked and hence there is no occasion to re-examine the victim for the purpose to confirm her statement under Section 161 Cr.P.C.

The applicant has not given even the single reason as to what prejudice would have caused to him and has simply stated that the re-examination of the victim is essential to the just decision of the case without assigning any reason for the same. The application under Section 311 Cr.P.C. moved by the applicant is nothing but amounts to abuse of process of law. If the material contradiction or ambiguity is found in the prosecution evidence, the applicant would be entitled to the benefit of doubt.

From the order dated 20.04.2022, it has also come out that the applicant was evading the proceedings and he had moved the application under Section 311 Cr.P.C. only after the issuance of non-bailable warrants just to linger the proceedings.

In view of the discussions made hereinabove, this Court finds no illegality in the order dated 20.04.2022 passed by the court of Additional Session Judge/Special Session Judge (POCSO Act), Bijnor in Special Session Trial No. 99 of 2016 arising out of case crime no. 276 of 2016, under Sections 363, 366 IPC and Section 7/8 of POCSO Act, Police Station Mandawar, District Bijnor.

The present application/petition is devoid of merit and is accordingly dismissed.

Order Date :- 24.5.2022

Nitesh