Chattisgarh High Court
Satruhan (Wrongly Mentioned As ... vs State Of Chhattisgarh on 11 May, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No. 469 of 2022
Satruhan (wrongly mentioned as Satrughan in the order sheet)
Lal Sen, S/o Shri Gangaram Sen, Aged about-54 years, R/o
Village-Kopra, Police Station-Rajim, Civil & Revenue District -
Gariyaband (C.G.)
---- Petitioner (Accused)
Versus
State of Chhattisgarh, Through Officer-In-Charge, Police Station-
Raim, Civil & Revenue District - Gairyaband
----Respondent
For Applicant : Mr. Devesh G. Kela, Advocate.
For Respondent/State : Mr. Lalit Jangde, Govt. Advocate.
Hon'ble Shri Justice N.K. Chandravanshi
Order On Board
11.05.2022
Heard on admission.
1. This criminal revision has been filed against the order dated
24.03.2022 passed by the Additional Sessions Judge, Fast Track
Special Court (POCSO and Rape Cases), Gariaband in Sessions Trial
No. 02/2021 [State of Chhattisgarh v. Shatrughan Lal Sen] whereby
learned trial Court has rejected an application under Section 311 of the
Cr.P.C. filed by the applicant/accused for recalling of two witnesses for
their further cross-examination.
2. The applicant is facing Session Trial No. 02/2021 for commission
of offence punishable under Section 376 (2)(b) and Section 450 of the
Indian Penal Code wherein several witnesses have already been
examined. On 10.2.2022, applicant filed an application under Section
311 of the Cr.P.C. for recalling of two witnesses i.e. PW 1 and PW-7 for
their further cross-examination, which was dismissed by the learned
Special Judge on the ground that what question is to be asked has not
been specified in the application and aforesaid witnesses have been
cross-examined at length, by the defence counsel.
3. Learned counsel for the applicant would submit that the
witnesses i.e. PW 1 and PW-7, who have been requested to call for
their further cross-examination, are the main/victim witnesses in this
case but due to some mistake on the part of earlier counsel, some
necessary facts with regard to intention and motive have not been
cross-examined, whereas for appropriate defence of the applicant,
further cross-examination on the above count is necessary for just &
proper decision of the case. It is further submitted that ground of
rejection of application by learned trial Court is unsustainable in law,
as, what questions are to be asked could not be specified in the
application under Section 311 of the Cr.P.C., otherwise defence of the
applicant would be frustrated. It is further submitted that the provision
contained in Section 311 of Cr.P.C. gives ample power to the Court for
recalling of witnesses to do complete justice but learned Court below
has dismissed the application filed by the applicant without considering
the purpose of provision contained in Section 311 of the Cr.P.C.,
therefore, it is prayed that revision be allowed and the applicant be
permitted for further cross-examination of the aforesaid witnesses by
recalling them.
4. Per contra, learned counsel for the State vehemently opposes
the submissions made by counsel for the applicants stating that burden
for proving intention and motive of the accused/applicant in
commission of crime lies upon the prosecution and not upon the
accused and the reasons stated by the applicant for recalling these two
witnesses are not just & proper. It is further submitted that both the
witnesses have been cross-examined in detail by the defence counsel,
therefore, order impugned does not call for any interference of this
Court.
5. I have heard learned counsel appearing for the parties and
perused the impugned order and material available on record.
6. The applicant has filed Xerox copy of deposition of PW-1 & Smt.
PW-7, which shows that both the witnesses have been cross-examined
by the defence counsel at length. The reasons, which have been
stated for recalling of those witnesses is to prove the intention and
motive of applicant/accused in respect of commission of alleged crime,
as they have not been cross-examined on that point, but intention and
motive are required to be proved by prosecution and not by the
defence because the intention and motive are required to be seen to
know the reasons for commission of offence. Since, the burden to
prove the aforesaid facts lies upon the prosecution, therefore,
aforesaid reasons for recalling of aforesaid witnesses is not found
appropriate.
7. In the application filed before the court below, it has also been
mentioned that various questions of fact & law is involved in the case,
therefore, further cross-examination of those two witnesses are
required but as has been mentioned above that both the witnesses
have been cross-examined at length, therefore, the applicant is
required to specify the Court that for what purpose, recalling of those
witnesses is necessary but no such fact has been shown, which could
justify the sufficient and valid reasons for recalling of the aforesaid
witnesses for their further cross-examination.
8. In the matter of Vijay Kumar v. State of Uttar Pradesh
reported in (2011) 8 SCC 136 , their Lordships of the Supreme Court
while considering the provisions contained in Section 311 of the Code,
has observed as under :-
"14. There is no manner of doubt that the power under
Section 311 of Code of Criminal Procedure is a vast one.
This power can be exercised at any stage of the trial. Such a
power should be exercised provided the evidence which
may be tendered by a witness is germane to the issue
involved, or if proper evidence is not adduced or relevant
material is not brought on record due to any inadvertence. It
hardly needs to be emphasized that power under Section
311 should be exercised for the just decision of the case.
The wide discretion conferred on the court to summon a
witness must be exercised judicially, as wider the power, the
greater is the necessity for application of the judicial mind.
Whether to exercise the power or not would largely depend
upon the facts and circumstances of each case. As is
provided in the Section, power to summon any person as a
witness can be exercised if the court forms an opinion that
the examination of such a witness is essential for just
decision of the case.
15. xxx xxx xxx
16. xxx xxx xxx
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. Before directing the learned
Special Judge to examine Smt. Ruchi Saxena as a court
witness, the High Court did not examine the reasons assigned
by the learned Special Judge as to why it was not necessary to
examine her as a court witness and has given the impugned
direction without assigning any reason."
9. In the matte 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 apparent that the
exercise of power by the Court would result in
causing serious prejudice to the accused resulting in
miscarriage of justice."
1 (2006) 7 SCC 529
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."
10. In the instant case, since no any good & reasonable ground have
been shown by the applicant/accused for recalling of those witnesses for
their further cross-examination and in view of the law laid down by the
Hon'ble Apex Court "power to summon any person as a witness can be
exercised if the Court forms an opinion that examination or further
examination of such witness is essential for just and proper decision of
the case". But in the instant case, no valid and sufficient reasons is found
for recalling of the aforesaid two witnesses for their further cross-
examination, therefore, I do not find any infirmity or illegality in the order
impugned rejecting the application under Section 311 of the Code filed
by the applicants.
11. As a fallout and consequence of the aforesaid discussion, the
criminal revision, being devoid of substance, is liable to be and is hereby
dismissed at the admission stage itself.
Sd/-
(N.K.Chandravanshi)
D/- Judge
