Saiyyad Shoeb Ali vs State Of Chhattisgarh
2022 Latest Caselaw 6206 Chatt

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                                                                     AFR
         HIGH COURT OF CHHATTISGARH, BILASPUR

                    Order Reserved on :27.09.2022
                    Order Delivered on: 12.10.2022

                        Cr.M.P.No.99 of 2022

Saiyyad Shoeb Ali S/o Saiyyad Sadik Ali, aged about 25 years, R/o
Nehru Nagar Colony, P.S. - City Kotwali, Raipur, Distt.Raipur (CG)
                                                           ---Petitioner
                                Versus
State of C.G. through Station House Officer, Police Station - Kotwali,
Raipur, Distt. Raipur (CG)
                                                         ---Respondent

For Petitioner : Mr.Pankaj Singh, Advocate For Respondent/State : Mr.Kapil Maini, Panel Lawyer

Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order

1. The petitioner herein is standing trial for offence under Section

376(2)(n), 384, 506, 120B & 509B/34 of the IPC and Section 67

of the Information and Technology Act, 2008. During the course

of trial, the victim was examined, cross-examined and discharged

on 18.3.2021 by the Special Judge (Atrocities), Raipur and

thereafter other witnesses were also examined. Thereafter the

petitioner herein / accused and the victim filed a joint application

for closure of the case on the ground that they both have entered

into compromise and therefore, criminal case be closed, but the

Special Judge (Atrocities), Raipur only discharged the petitioner

herein for offence under Section 506 Part-II of the IPC being

compoundable offence and rest of the offences being non-

compoundable directed to proceed with the trial. Thereafter, the

petitioner herein filed an application under Section 311 of the

CrPC for recalling the victim for further cross-examination and

also filed affidavit of the victim that she has compromised with

him, therefore, the victim be directed to appear for further cross-

examination, which the trial Court has rejected finding no merit,

against which, this petition under Section 482 of the CrPC has

been filed.

2. Detailed return opposing the petition has already been filed by

the respondent / State.

3. Mr.Pankaj Singh, learned counsel appearing for the petitioner,

would submit that the learned Special Judge is absolutely

unjustified in rejecting the application filed by the petitioner as it is

just and proper disposal of the trial. Therefore, the impugned

order deserves to be set aside. He would rely upon the recent

decision of the Supreme Court in the matter of Varsha Garg v.

State of Madhya Pradesh and others 1. He would further rely

upon the decision of the Supreme Court in the matter of Mina

Lalita Baruwa v. State of Orissa and others 2 and lastly he

would rely upon the decision of the Supreme Court in the matter

of Mohanlal Shamji Soni v. Union of India and another 3.

4. On the other hand, Mr.Kapil Maini, learned Panel Lawyer for the

respondent/State, would support the impugned order and submit

that application filed by the petitioner under Section 311 of the

1 AIR 2022 SC 3707 2 (2013) 16 SCC 173 3 1991 Supp (1) SCC 271

CrPC has rightly been rejected by the learned Special Judge

(Atrocities) and as such, the petition under Section 482 of the

CrPC deserves to be dismissed.

5. I have heard learned counsel appearing for the parties,

considered their rival submissions made hereinabove and also

went through the records with utmost circumspection.

6. In order to consider the plea raised at the Bar, it would be

appropriate to notice Section 311 of the CrPC which states 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. 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."

7. It is well well settled law that power and jurisdiction under Section

311 of the CrPC should be exercised judiciously and not

arbitrarily. Exigency of the situation, fair play and good sense

should be the safeguard, while exercising the discretion. The

exercise of the widest discretionary power under Section 311

CrPC should ensure that the judgment should not be rendered on

inchoate, inconclusive and speculative presentation of facts, as

thereby the ends of justice would be defeated. It is also equally

well settled that if evidence of any witness appears to the court to

be essential to the just decision of the case, the court has power

to summon and examine or recall and re-examine any such

witness. The exercise of power under Section 311 CrPC should

be resorted to only with the object of finding out the truth or

obtaining proper proof for such facts, which will lead to a just and

correct decision of the case. Power under Section 311 CrPC

cannot be dubbed as filling in a lacuna in a 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. It is the Court's duty in every respect essential to examine

such witness or to recall him for further examination to arrive at

just decision of the case. 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 corrected. The

power under Section 311 CrPC must therefore, be invoked by the

court only in order to meet the ends of justice for strong and valid

reasons and the same must be exercised with care, caution and

circumspection. The court should bear in mind that fair trial

entails the interest of the accused, the victim and the society and,

therefore, grant of fair and proper opportunities to the persons

concerned, must be ensured being a constitutional goal, as well

as a human right. (See State of Haryana v. Ram Mehar and

others 4).

8. Similarly, very recently in the matter of Varsha Garg (supra), the

4 AIR 2016 SC 3942

Supreme Court held as under:-

"28. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court "may":

(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and

(ii) Recall and re-examine any person who has already been examined.

This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court "shall" summon and examine 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 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.

29. The first part of the statutory provision which uses the expression "may" postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression "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". Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.

32. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.

9. The Supreme Court in the matter of Yakub Ismailbhai Patel v.

State of Gujarat 5 has held that once the witness is examined as

prosecution witness, he cannot be allowed to perjure himself by

resiling from testimony given in Court on oath. It was observed as

under:-

"40. Significantly this witness, later on filed an affidavit wherein he had sworn to the fact that whatever he had deposed before Court as PW-1 was not true and it was so done at the instance of Police.

41. The averments in the affidavits are rightly rejected by the High Court and also the Sessions Court. Once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from testimony given in Court on oath. It is pertinent to note that during the investigating period between giving of evidence as PW-1 and filing of affidavit in Court later he was in jail in a narcotic case and that the accused persons were also fellow inmates there."

10. Similarly, in the matter of Mishrilal and others v. State of

M.P. and others 6 the Supreme Court has clearly held that once

the witness was examined-in-chief and cross-examined fully,

such witness should not have been recalled and re-examined to

deny the evidence he had already given before the court, even

though that witness had given an inconsistent statement before

any other court or forum subsequently. It was observed as

under:-

"6. In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined in-chief and cross- examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him.

At the time of examination of PW 2 Mokam Singh on

5 AIR 2004 SC 4209 6 (2005) 10 SCC 701

6-2-1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses."

11. The Madhya Pradesh High Court in the matter of Gariba

alias Naresh alias Ramnaresh and Ors. v. State of M.P.7

relying upon Yakub Ismailbhai Patel (supra) and Mishrilal

(supra) has held that once witness is examined as a prosecution

witness, he cannot be recalled merely because he has filed

affidavit contrary to the deposition made before the trial Court.

12. In the instant case, admittedly, the victim and prosecution

witnesses have already been examined, cross-examined and

discharged on 18.3.2021 and thereafter an application under

Section 311 of the CrPC has been filed by the petitioner along

with affidavit of the victim. On the basis of which, the accused /

petitioner herein has filed an application to recall the victim for

further cross-examination, as affidavit filed by the victim is just

contrary to the statement which she has made before the trial

Court and the victim has been sought to be recalled for cross-

examination in respect of her affidavit. In view of principle of law

laid down by the Supreme Court in the matters of Yakub

7 2014 CRI.L.J. 4383

Ismailbhai Patel (supra) and Mishrilal (supra) followed by the

Madhya Pradesh High Court in the matter of Gariba alias

Naresh alias Ramnaresh (supra), since the victim has been

examined, cross-examined and discharged, she cannot be

recalled merely because she has filed affidavit contrary to her

earlier statement.

13. Furthermore, the power to recall a witness under Section

311 of the CrPC is to be exercised with circumspection only in a

suitable case to advance the cause of justice. If the witnesses

are recalled subsequent to the conclusion of their evidence in

Court at the behest of the accused on the basis of affidavits

subsequently filed by them contradicting their previous

statements made in court, it would be in violation of the

provisions contained in Section 145 Evidence Act. (See Tahir

and others v. State of U.P. 8).

14. In that view of the matter, the learned Special Judge is

absolutely justified in rejecting the application filed by the

petitioner under Section 311 of the CrPC.

15. Accordingly, the petition under Section 482 of the CrPC

deserves to be and is hereby dismissed.

Sd/-

(Sanjay K. Agrawal) JUDGE B/-

8 (2000) CriLJ 1342