Chattisgarh High Court

Mohammad Sahid @ Ashif vs State Of Chhattisgarh on 16 February, 2023

                                  1

                                                                 AFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                        Cr.M.P No.334 of 2023


Mohammad Sahid @ Ashif S/o Late Kamruddin Khan Aged About 24
Years R/o Birighat, Ward No. 29 Police Station Rajkhariyar, (Odisha)
                                                         ----Petitioner
                                  Versus


State Of Chhattisgarh Through SHO Newai District Durg C.G., District
: Durg, Chhattisgarh                              ----Respondent

For Petitioner: Shri BP Singh, Advocate.

For Respondent/State: Shri Chitendra Singh, PL.

Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 16.02.2023

1. This Petition has been filed under Section 482 of Cr.P.C. for

challenging the order dated 05.12.2022 passed by the Additional

Sessions Judge, 1st FTC, Special Judge (POCSO Act), Durg in

Special Criminal Case POCSO No.57/2022 whereby, the application

preferred by the Petitioner under Section 311 Cr.P.C for recalling the

prosecutrix was dismissed.

2. Brief facts of the case are that a special Sessions Case is

pending consideration against the Petitioner for the offence under

Sections 363, 366 and 376 IPC as also under Sections 5 & 6 of the

POCSO Act, 2012 (for short 'the Act of 2012'). In the said case, the

Petitioner has moved an application on 05.12.2022 for re-cross-

examination of the prosecutrix (PW-1), whose statement was

recorded on 02.06.2022 and the said application was dismissed by

the order impugned.

3. Shri Singh submits that on the earlier occasion, the previous

Counsel has not properly cross-examined the prosecutrix regarding

her date of birth and age and had, in a very mechanical manner and

by adopting superficial method, asked questions. He further submits

that as the allegation against the Petitioner is serious in nature and

there is stringent punishment under the law to that extent, therefore,

re-cross-examination of the prosecutrix is necessary for just decision

of the case, therefore, not allowing the application filed by the

Petitioner for recalling the prosecutrix is bad in law as there are well

settled principles of criminal justice that the client should not suffer

due to latches of the Counsel and the trial Court has dismissed the

said application stating that the same has been filed by the Petitioner

only to fill up the latches of the defense, which is not in accordance

with law and the ambit and scope of Section 311 Cr.P.C has been

dealt with in the matter of Varsha Garg vs. State of Madhya Pradesh

& Ors reported in 2022 SCC OnLine SC 986 as also in various

catena of judgments. He lastly submits that to ascertain the true age

of the prosecutrix, further examination of her is necessary, which is

beneficial for both sides and Section 33(5) of the Act of 2012 is not

absolute, therefore, prays to quash the impugned order and allow the

Petition.

4. Per contra, Shri Singh supports the impugned order and

submits that Section 311 Cr.P.C cannot be availed for recalling the

prosecutrix on the ground that earlier Counsel has not put the

questions in proper perspective. He further submits that as the

prosecutrix has been examined at length even on the point of age

and further, the legislature in its wisdom under Section 33(5) of the

Act of 2012 specifically mandates that the Special Court shall ensure

that the child is not called repeatedly to testify in the Court and as the

Petitioner has also not brought any foundation or material that the

age of the prosecutrix recorded by the prosecution is not true,

recalling amounts to harassing the prosecutrix which is not proper

and therefore, prays to dismiss the Petition.

5. I have heard learned counsel for the parties and perused the

documents annexed herewith with utmost circumspection.

6. In the matter of Varsha Garg vs. State of Madhya Pradesh &

Ors (supra), the Supreme Court had, while allowing the application

filed by the prosecution under Section 311 Cr.PC for the production of

the decoding registers and for the summoning of the witnesses of the

cellular companies for that purpose, significantly observed about the

scope and exercise of such powers and the relevant paras read as

under:-

"44. In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat 26 , which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd. 27 , the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should

only be based on the test of the essentiality of the evidence. It noted that:

"28. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.

45. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad (supra), the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in interest of justice.

In Rajendra Prasad (supra), the Court had held that:

"8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. 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. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."

47. Finally, we also briefly deal with the objection of the respondents regarding the stage at which the application under Section 311 was filed. The respondents have placed reliance on Swapan Kumar (supra), a two judge Bench decision of this Court, to argue that the application should not be allowed as it has been made at a belated stage. The Court in Swapan Kumar (supra) observed:

"11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has wide power under this Section to even recall witnesses for re-

examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. 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 the process of law.

12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision."

51. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni (supra) stressed upon the wide ambit of Section 311 which

allows the power to be exercised at any stage and held that:

"44. The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. : (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, "any court", "at any stage", or "any enquiry or trial or other proceedings", "any person" and "any such person" clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, "essential" to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth."

7. Reverting back to the facts of the present case, after perusing

the statement of the prosecutrix and the application preferred by the

Petitioner/accused for recalling the prosecutrix for further cross-

examination, it is evident that though the prosecutrix has been

examined on 02.06.2022 but after 6 months, this Petition has been

filed on the ground that earlier Counsel has not put certain questions

to her for ascertaining her age, which is not a ground to recall the

prosecutrix and the Petitioner has also not filed any foundation or

substantial material through which this Court can think over that her

cross-examination is necessary. It is well settled that no party in a

trial can be foreclosed from correcting errors and if proper evidence

was not adduced or a relevant material was not brought on record