Chattisgarh High Court
Arjun Kumar vs State Of Chhattisgarh on 27 June, 2024
Neutral Citation
2024:CGHC:22521
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 1635 of 2024
Arjun Kumar, S/o Kapil Choudhary, Aged About 25 Years R/o Batupar
Ahatmaali, P.S. Tarya Sujan, District Kushinagar, Uttar Pradesh.
---- Petitioner
Versus
State Of Chhattisgarh, Through S.H.O. Police Station Balod, District Durg,
Chhattisgarh.
---- Respondent
_________________________________________________________________
For Petitioner : Mr. Shikhar Bhaktiyar, Advocate
For State : Mr. Arpit Agrawal, Panel Lawyer
Hon'ble Shri Arvind Kumar Verma, Judge
Order on Board
27/06/2024
1. This petition has been iled under Section 482 of Cr.P.C.
challenging the order dated 27.03.2024 (Annexure A/1) by which
learned Special Sessions Judge (FTC) (POCSO Act), Balod,
District- Balod (C.G.) has rejected the application of petitioner iled
under Section 311 of Cr.P.C. seeking recall of the victim for cross-
examination.
2. Learned Counsel for the Petitioner submits that victim was
examined before the Trial Court on 16.10.2023 by the former
Counsel after which the accused/appellant engaged another
Counsel and prays for re-examination of the victim as she could
not be cross-examined with respect to her age. He further submits
that the application dated 05.03.2024 was moved under Section
311 of Cr.P.C. for recalling the victim in order to bring on record
correct facts and circumstances, which could not be elicited during
cross-examination of victim and are also material for just disposal
of the trial. However, the trial court by the impugned order dated
27.03.2024 has erroneously rejected the said application. He
submits that the Trial Court has vide power under Section 311 of
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2024:CGHC:22521
Cr.P.C. to recall and re-examine the witness at any time, therefore,
the Trial Court ought to have allowed the application iled on behalf
of applicant under Section 311 of Cr.P.C. for recalling the victim.
He submits that rejection of application in the given facts and
circumstances of the case would amount to failure of justice and it
would also amount to abuse of process of Court.
3. Learned State Counsel opposing the submission of counsel for the
petitioner would submit that victim, who is sought to be recalled for
re-examination, was already examined and cross-examined
extensively by counsel for the defence. There is no suicient
ground to recall the aforesaid witness. The learned trial court has
rightly rejected the said application for recall of the victim.
4. Heard learned counsel for the parties and perused the impugned
judgment placed on record.
5. From perusal of the order impugned it is relecting that re-
examination of the victim is sought on the point of her date of birth.
The trial court rejected the application for re-examination on the
ground that the victim has been cross-examined in detail with
respect to her age and date of birth and as such, the application
iled on behalf of applicant is baseless. The application for
recalling the victim has been iled by the accused on the ground
that victim could not be examined in detail on the point of her age,
which cannot be allowed as no ground exists in terms of Section
311 of Cr.P.C.
6. The Hon'ble Apex Court has laid down some guidelines in the
case of Natasha Singh Vs. CBI (State), reported in 2013 (5)
SCC 741 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
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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 ill 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 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 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."
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7. On perusing the order sheet of cross-examination the of victim, it
transpires that victim herself has admitted that she could not tell
whether the date of birth mentioned in her marksheet is correct or
not. Thus, it is an admitted fact that the victim has been cross-
examined on the point of her date of birth.
8. A fair opportunity for cross-examination of victim has already been
given by the Trial Court. Mere change of counsel cannot be a
ground to recall the witness. There is no basis in holding that any
prejudice will be cause to the accused. The Trial Court has rightly
rejected the application for recall of victim for further cross-
examination with regard to her age.
9. Meanwhile, jurisdiction under Section 482 of Cr.P.C. has to be
exercised sparingly, carefully and with caution and only then such
exercise is justiied by the test speciically laid down in the section
itself.
10. In the opinion of this Court, no ground exists in terms of Section
311 of Cr.P.C. to recall the victim for further cross-examination.
There is no illegality in the order impugned by which the trial Court
rejected application of applicant iled under Section 311 of Cr.P.C.
11. Therefore, the present petition deserves to be and is hereby
dismissed.
SD/-
(Arvind Kumar Verma)
Judge
Madhurima
