Bombay High Court
Ruzan Samir Pathan vs The State Of Maharashtra And Anr on 24 January, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:4423
22-apl-1495-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1495 OF 2023
Ruzan Samir Pathan ...Applicant
vs.
The State of Maharashtra and Anr. ...Respondents
Mr. Pratik Kalantri, for the Applicant.
Mrs. G.P. Mulekar, APP, for the Respondent/State.
Ms. Akshata Desai, for Respondent No. 2.
CORAM : N. J. JAMADAR, J.
DATE : JANUARY 24 2024
P.C.:
1. This is an application under section 482 of the Code of
Criminal Procedure, 1973 to quash and set aside an order dated 21 st
July, 2023 passed by learned Special Judge (POCSO) and Additional
Sessions Judge, Nashik on an application (Exhibit 118) whereby the
application to examine the victim as a defence witness came to be
rejected.
2. The applicant is facing prosecution for the offence punishable
under section 376(3) of the Indian Penal Code, 1860 and sections 4
and 6 of the Protection of Children from Sexual Offences Act, 2012
(POCSO).
3. The indictment against the applicant is that the applicant had
Vishal Parekar ...1
::: Uploaded on - 30/01/2024 ::: Downloaded on - 12/02/2024 08:18:23 :::
22-apl-1495-2023.doc
forcible sexual intercourse with the victim who was then 14 years
and 9 months of age. The victim alleged that the applicant had
developed proximity with her and on 25 th July, 2021 the applicant
took her to a guest house at Nashik Road and had forcible sexual
intercourse with her. The victim narrated the incident to her
parents and eventually the FIR was lodged on 2nd August, 2021.
4. The trial commenced. The victim came to be examined as
prosecution witnesses No. 3. She was cross examined. The
prosecution, post examination of other witnesses, closed its
evidence on 21st May, 2023.
5. The applicant preferred an application to examine the victim
as a defence witness. The prosecution resisted the application
contending inter alia that the applicant had full liberty to cross
examine the victim and there was no provision to examine a
person, as a defence witness, who has already been examined as a
prosecution witnesses.
6. The learned Judge, Special Court was persuaded to reject the
application opining, inter alia, that the applicant had full
opportunity to cross examine the victim and did avail the said
Vishal Parekar ...2
::: Uploaded on - 30/01/2024 ::: Downloaded on - 12/02/2024 08:18:23 :::
22-apl-1495-2023.doc
opportunity to the fullest, and the applicant had preferred the said
application with a view to fill in the lacuna.
7. Mr. Kalantri, learned counsel for the applicant, submitted
that the applicant and the victim were friends. The victim had
lodged the report against the applicant at the behest of her family
members. Later on the victim has realized the mistake and has
conveyed the same in a video message. The victim has expressed
desire to disclose the truth before the Court. Therefore, it is
necessary to again examine the victim. Mr. Kalantri submitted that
there is no embargo on the power of the Court under section 311 of
the Code. The learned Special Judge lost sight of the fact that the
examination of the victim was necessary for a just decision of the
case. The impugned order thus deserves to be quashed and set
aside.
8. In contrast, learned APP controverted the submissions of the
applicant. It was urged that the applicant/accused had availed
opportunity to cross examine the victim, at length, and after
prosecution closed its evidence, the applicant has made an
endeavour to fill in the lacuna by seeking to examine the victim
which was impermissible. The victim, learned APP submitted, can
Vishal Parekar ...3
::: Uploaded on - 30/01/2024 ::: Downloaded on - 12/02/2024 08:18:23 :::
22-apl-1495-2023.doc
not be subjected to such ordeal especially having regard to the fact
that at the time of alleged occurrence the victim was barely 14
years of age.
9. I have perused the application preferred by the
applicant/accused before the learned Special Judge, the reply
thereto and the impugned order. First and foremost the application
(Exhibit 118) singularly lacks any reason much less justifiable one,
to examine the victim as a witness in defence. The accused has
preferred the application as if the accused intended to examine a
witness in a routine course.
10. Mr. Kalantri, the learned counsel for the applicant would urge
that the prayer of the applicant to examine the victim was squarely
covered by the wide power conferred on the Court under section
311 of the Code and the Special Judge could have legitimately
exercised the said power.
11. Section 311 of the Code reads as under :-
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
Vishal Parekar ...4
::: Uploaded on - 30/01/2024 ::: Downloaded on - 12/02/2024 08:18:23 :::
22-apl-1495-2023.doc
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.
12. On plain reading, it becomes abundantly clear that the Court
is vested with a discretion to summon any person as a witness, or
recall and re-examine any person already examined. The discretion
is however guided by the consideration of necessity examination of
such person for a just decision of the case. The latter part of the said
section thus emphasizes that the Court shall summon any person as
a witness, or recall and re-examine any such person if his evidence
appears to the Court to be essential to the just decision of the case.
Section 311 of the Code thus confers wide power on the Court to
examine a witness or recall or re-examine the witness already
examined, essentially to advance the cause of just decision of a
case. As is evident the words, "at any stage" give wide discretion to
the Court and the stage of the proceeding does not constitute an
inhibiting factor in the exercise of the said power. It is not the stage
of the proceedings but the necessity of the examination of the
witness for a just decision of the case which is a decisive factor.
13. The Supreme Court expounded the scope and ambit of section
Vishal Parekar ...5
::: Uploaded on - 30/01/2024 ::: Downloaded on - 12/02/2024 08:18:23 :::
22-apl-1495-2023.doc
311 of the Code in the case of Vijay Kumar vs. State of U.P.1 as
under:-
17. Though Section 311 confers vast discretion upon
the court and is expressed in the widest possible
terms, the discretionary power under the said
Section can be invoked only for the ends of justice.
Discretionary power should be exercised consistently
with the provisions of the Code and the principles of
criminal law. The discretionary power conferred
under Section 311 has to be exercised judicially for
reasons stated by the Court and not arbitrarily or
capriciously.
14. In the case of Zahira Habibullah Sheikh vs. State of Gujrat 2
the Supreme Court emphasized that though section 311 confers
wide discretion yet, it is required to be exercised judiciously, as the
wider the power the greater is the necessity for application of
judicial mind.. The observations in paragraph 27 read as under:-
27. 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
1 (2011) 8 SCC 136.
2 (2006) 3 SCC 374.
Vishal Parekar ...6
::: Uploaded on - 30/01/2024 ::: Downloaded on - 12/02/2024 08:18:23 :::
22-apl-1495-2023.doc
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.
15. A useful reference in this context can be made to the
judgment of the Supreme Court in the case of Ratanlal vs. Prahlad
Jat and Others3 wherein a somewhat identical fact situation had
arisen. In the said case two witnesses were examined as
prosecution witness Nos. 4 and 5. In all 28 witnesses were
examined. Thereafter, those prosecution witnesses No. 4 and 5
preferred an application for re-examining them purportedly on the
ground that their earlier evidence was adduced under the influence
of police. The learned Sessions Judge had rejected the application.
The High Court set aside the order of the learned Sessions Judge
and allowed the application of the witnesses to re-examine them.
The Supreme Court in the backdrop of the aforesaid fact situation
observed, inter alia, as under:-
17. In order to enable the court to find out the truth
and render a just decision, the salutary provisions of
Section 311 are enacted whereunder any court by
exercising its discretionary authority at any stage of
inquiry, trial or other proceeding can summon any
person as witness or examine any person in
attendance though not summoned as a witness or
recall or re-examine any person already examined
who are expected to be able to throw light upon the
matter in dispute. The object of the provision as a
3 (2017) 9 Supreme Court Cases 340.
Vishal Parekar ...7
::: Uploaded on - 30/01/2024 ::: Downloaded on - 12/02/2024 08:18:23 :::
22-apl-1495-2023.doc
whole is to do justice not only from the point of view of
the accused and the prosecution but also from the
point of view of an orderly society. This power is to be
exercised only for strong and valid reasons and it
should be exercised with caution and circumspection.
Recall is not a matter of course and the discretion
given to the court has to be exercised judicially to
prevent failure of justice. Therefore, the reasons for
exercising this power should be spelt out in the order.
... ......
22. Coming to the facts of the present case, PWs 4 and
5 were examined between 29.11.2010 and 11.3.2011.
They were cross-examined at length during the said
period. During the police investigation and in their
evidence, they have supported the prosecution story.
The Sessions Judge has recorded a finding that they
were not under any pressure while recording their
evidence. After a passage of 14 months, they have
filed the application for their re-examination on the
ground that the statements made by them earlier
were under pressure. They have not assigned any
reasons for the delay in making application. It is
obvious that they had been won over. We do not find
any reasons to allow such an application. The Sessions
Judge, therefore, was justified in rejecting the
application. In our view, High Court was not right in
setting aside the said order.
16. The aforesaid decision appears to be on all four with the facts
of the case at hand. The victim (PW.3) was duly examined and cross
examined, at length, on behalf of the applicant/accused. The
prosecution examined further witnesses and closed its evidence.
Thereafter, the instant application came to be preferred as if the
accused desired to examine a formal witness. Even on the
touchstone of the principles governing the exercise of the powers of
the Court under section 311 of the Code, the further examination of
Vishal Parekar ...8
::: Uploaded on - 30/01/2024 ::: Downloaded on - 12/02/2024 08:18:23 :::
22-apl-1495-2023.doc
the victim does not appear essential for a just decision of the case. It
appears that an effort has been made to win over the victim and
thus the endeavour to examine her in defence.
17. The matter can be looked at from another perspective. Section
33 of the POCSO Act, 2012 prescribes special procedure with a view
to insulate the child from the ordeals which the child would have
otherwise faced in a trial. Sub section (5) of section 33 inter alia
provides that the Special Court shall ensure that the child is not
called repeatedly to testify in the Court. In a case where the re-
examination of the child becomes absolutely essential for the just
decision of the case, the procedure prescribed under the POCSO Act,
may not override section 311 of the Code, 1973, yet, the Court
cannot loose sight of the fact that the child, in this case, has already
been examined and also cross examined at length. And the case at
hand does not seem to be of such a nature as to invoke the power
under section 311 of the Code and recall the victim for cross
examination or further examination.
18. The conspectus of the aforesaid consideration is that the
learned Special Judge committed no error in declining to accede to
the prayer to call the victim as a defence witness. Hence, the instant
Vishal Parekar ...9
::: Uploaded on - 30/01/2024 ::: Downloaded on - 12/02/2024 08:18:23 :::
22-apl-1495-2023.doc
application, being devoid of substance, deserves to be rejected.
Thus, the following order.
ORDER
The application stands rejected.
(N. J. JAMADAR, J.)
Vishal Parekar ...10
