Sanjay Malik vs State Of Chhattisgarh
2022 Latest Caselaw 4532 Chatt

                                    1

                                                                       NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                   Criminal Revision No. 721 of 2022

      Sanjay Malik, S/o Ranveer Malik, aged about 36 years, R/o
      Karamal, Police Station - Berla, District - Bemetara (C.G.)

                                                              ---- Applicant

                                  Versus

      State of Chhattisgarh, Through: S.H.O., Police Station - Berla,
      District - Bemetara (C.G.)

                                                          ----Non-applicant



For Applicant              : Mr. Vaibhav A. Goverdhan, Adv.
For Non-applicant/State    : Mr. Gurudeo I. Sharan, Govt. Adv.


                Hon'ble Shri Justice N.K. Chandravanshi

                             Order On Board
18.07.2022

1.

With the consent of the parties, the matter is heard finally at the motion stage.

2. This criminal revision has been preferred against the order dated 22.6.2022 passed by 1st Additional Sessions Judge, Fast Track Court, Bemetara, District Bemetara in Sessions Trial No. 76/2021 whereby learned court below has rejected the application under Section 311 of the Code of Criminal Procedure, 1973 (henceforth "the Code") filed by the applicant for recalling of victim/prosecutrix (PW-1) for her further cross- examination.

3. The applicant is facing trial before the 1st Additional Sessions Judge, Fast Track Court, Bemetara, District Bemetara for commission of offence punishable under Sections 376 and 342 of IPC. Victim/prosecutrix has been examined as PW-1. The case is still pending on the stage of evidence of prosecution witnesses and the case has

been fixed for hearing on 19.7.2022. Applicant/accused filed an application under Section 311 of the Code for recalling of the victim/prosecutrix for her further cross-examination, which was rejected by the court below vide its impugned order dated 22.06.2022. Hence, this revision petition.

4. Learned counsel appearing for the Applicant would submit that victim/prosecutrix has been examined on 28.1.2022 and she has been cross-examined on behalf of the applicant/accused also, but due to some inadvertence and bona-fide mistake, particularly, in respect of her statement recorded under Section 164 of the Code, as there is huge contradictions and omissions in respect of her aforesaid statement, FIR and the statement recorded under Section 161 of the Code, she has not been cross-examined in this regard. It is further submitted that applicant is facing trial for heinousness offence of rape and if he is not permitted to be further cross-examination of victim/prosecutrix, then it would cause huge difficultly to make reasonable and justifiable defence, despite that learned court below without considering the serious fact situation of the case and very purpose of the provisions contained in Section 311 of the Code, has mechanically dismissed the application under Section 311 of the Code filed by the applicant, therefore, it is prayed that impugned order, being illegal, erroneous and unsustainable in law, is liable to be dismissed and by allowing an application filed by the applicant, this revision petition may be allowed in the interest of justice.

5. On the other hand, learned counsel for the State/non-applicant, while opposing the submissions made by counsel for the applicant, would submit that applicant had been afforded full and sufficient opportunity for cross-examination of victim/prosecutrix and she has been cross- examined by the defence counsel at length. He also submits that further cross-examination of the victim/prosecutrix, that too, of victim of rape could not be permitted to fill-up the lacuna, which has been left by the defence counsel while cross-examining the victim/prosecutrix. Hence, there is no illegality or infirmity committed by the learned Court below while rejecting the application filed by the applicant, therefore, the

revision petition is liable to be dismissed.

6. I have heard learned counsel appearing for the parties and perused the impugned order as well as material available on record.

7. The applicant has filed Xerox copy of the deposition of victim/prosecutrix (PW-1) and her statement recorded under Section 164 of the Code. A perusal of her cross-examination would go to show that she has not been cross-examined in respect of her statement recorded under Section 164 of the Code, no contradiction/omission has been taken in this regard. No doubt, applicant/accused is facing serious charges, which consist grave punishment, if he is convicted. In such cases, learned defence counsel must be very conscious and prepared while cross-examining the witness, that too, victim/prosecutrix but it seems that in the instant case, learned defence counsel was reluctant to some extent.

8. In the matter of U.T. of Dadra & Nagar Haveli and another v. Fatehsinh Mohansinh Chauhan 1, their Lordships of the Supreme Court while considering the scope of Section 311 of the Code and also considering the various pronouncement of judgments has held in paragraph 15, which reads as under:-

"15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the Court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in prosecution case"

unless the facts and circumstances of the case make it

1 (2006) 7 SCC 529

apparent that the exercise of power by the Court would result in causing serious prejudice to the accused resulting in miscarriage of justice."

This observation has been made by Hon'ble Apex Court in an application under Section 311 of the Code filed by the prosecution whereas in the instant case, application under Section 311 of the Code has been filed by the applicant/accused but principle with regard to exercise power under Section 311 of the Code held by Hon'ble Supreme Court is applicable for both the parties, so that justice could be done.

9. In the matter of Natasha Singh v. CBI (State) 2, their Lordships of the Supreme Court has held as under :-

"15. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case.

Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of 2 (2013) 5 SCC 741

justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as 'any Court', 'at any stage", or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."

10. Reverting back into the facts of the present case in light of the aforecited judgments, as has been stated above that victim/prosecutrix has not been cross-examined in respect of her statement recorded under Section 164 of the Code and contradiction/omission has not been taken in this regard. Applicant has specifically mentioned in his application filed under Section 311 of the Code filed before the trial Court that was questions has to be asked from the victim/prosecutrix.

11. Considering the scope and object of provisions contained in Section 311 of the Code and also considering the aforesaid dictum given by Hon'ble Supreme Court in the aforesaid cases, it would be appropriate in the interest of justice to afford an opportunity to the applicant/accused for recalling the victim/prosecutrix (PW-1) for her further examination up to the extent, which has been stated in the application under Section 311 of the Code filed by him before the trial Court.

12. Resultantly, the impugned order dated 22.06.2022 is set aside and the application under Section 311 of the Code filed by the applicant on 21.06.2022 is allowed with a condition that he will pay process fee for recalling victim/prosecutrix (PW-1) and also to pay travelling expenses & other requisite expenses as per law to her, with a further condition that he shall pay cost of Rs.5,000/- to the District Legal Services Authority,

Bemetara.

13. It is made clear this order shall be subject to submission of receipt of Rs.5,000/- payable to the District Legal Services Authority, Bemetara before the trial Court.

14. The revision is thus allowed to the extent indicated hereinabove.

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

Sd/-

                                                              (N.K.Chandravanshi)
D/-                                                                 Judge