Karnataka High Court

Sri Sandeep Balachandran vs State By Talaghattapura Ps on 9 June, 2022

Bench: M.Nagaprasanna

                               1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 09TH DAY OF JUNE, 2022

                              BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           WRIT PETITION No.7733 OF 2022 (GM-RES)

BETWEEN:

SRI SANDEEP BALACHANDRAN
S/O KPN KUTTY
AGED ABOUT 50 YEARS,
RESIDING AT NO.JG-287
ITTINA NEELA, HEELALIGE ROAD
ANDAPURA, BENGALURU - 560 100.
                                              ... PETITIONER
(BY SRI PRAVEEN S., ADVOCATE)

AND:

STATE BY TALAGHATTAPURA PS
REPRESENTED BY HCGP
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
                                             ... RESPONDENT
(BY SRI K.S.ABHIJITH, HCGP)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH 482 OF CR.P.C.,
PRAYING TO QUASH THE ORDER DATED 29/03/2022 PASSED BY
THE HONBLE ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-1
BENGALURU RURAL IN SPL. C. NO. 149/2015 AT ANNEXURE-D.
AND DIRECT THE COURT BELOW TO PASS SUITABLE ORDERS
WITNESS RECALL APPROPRIATE APPLICATION AT ANNEXURE-F OF
THIS PETITION OR IN THE ALTERNATIVE TO ALLOW THE SAID
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APPLICATION RECALLING          PW-1    AND     PW-2   FOR    CROSS
EXAMINATION.


    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

The petitioner/accused in Spl.C.No.149 of 2015 before the

Additional District and Sessions Judge, FTSC-1, Bengaluru

arising out of Crime No.215 of 2015 registered for offences

punishable under Section 354 of the IPC and Sections 6, 11 and

12 of the Protection of Children from Sexual Offences Act, 2012

('the Act' for short) is before this Court, calling in question order

dated 29-03-2022 rejecting the applications filed by him under

Section 311 of the Cr.P.C. for recalling of PWs-1 and 2 for

further cross-examination.

2. Heard Sri.Praveen.S., learned counsel for petitioner and

Sri.K.S.Abhijith, learned High Court Government Pleader,

appearing for respondent.

3. The issue in the petition is akin to what is decided by

this Court in Crl.P.No.4449/2022 disposed on 06.06.2022,

wherein this Court has examined the identical facts and offences

alleged against the petitioner therein. While so examining, this

Court has held as follows:

"11. To consider the prayer of the petitioner in the subject petition, it is germane to notice the statutory provisions. Section 311 of the Cr.P.C. reads as follows:

"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."

In terms of Section 311 of the Cr.P.C. a Court may at any stage of any inquiry, trial or other proceeding, recall a witness for re-examination, if his evidence appears to it to be essential for a just decision in the case. The Apex Court has interpreted Section 311 of the Cr.P.C. to be a very important tool in the hands of the Court towards the cause of justice. The Apex Court in the case of V.N.PATIL v. K.NIRANJAN KUMAR1 has held as follows:

"13. The scope of Section 311 CrPC which is relevant for the present purpose is reproduced hereunder:

"311. Power to summon material witness, or examine person present.--Any court may, at

(2021)3 SCC 661

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."

14. The object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion".

15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P. [Vijay Kumar v. State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240] : (SCC p. 141, para 17)

"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."

16. This principle has been further reiterated in Mannan Shaikh v. State of W.B. [Mannan Shaikh v. State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547] and thereafter in Ratanlal v. Prahlad Jat [Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 : (2017) 3 SCC (Cri) 729] and Swapan Kumar Chatterjee v. CBI [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] . The relevant paragraphs of Swapan Kumar Chatterjee [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] are as under: (Swapan Kumar Chatterjee case [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] , SCC p. 331, paras 10-11)

"10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or

(iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

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 vide 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."

17. The aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice."

(Emphasis supplied)

The Apex Court holds that the aim of every Court is to discover the truth. Section 311 of the Cr.P.C. is one of many such provisions which strengthen arms of a court in its effort to unearth the truth except where applications are filed as an abuse of the process of law. Such discretion will have to be exercised by the Court.

12. In the light of the judgment of the Apex Court (supra), the petitioner who is now facing trial for offences punishable under the provisions of the Act, if convicted, would end up with conviction of more than 10 years. In such a case, the accused should be given an opportunity to

defend himself, except in cases where an application is filed by adopting dilatory tactics.

13. The reason rendered in the application filed is clear that it is filed only after the admission of the father of the victim that there was no sexual act committed by the petitioner on the victim. Therefore, the order rejecting the application despite the soul and spirit of Section 311 Cr.P.C being as is held by the Apex Court is thus rendered unsustainable.

14. The other ground on which the learned Sessions Judge declines to accept the application is placing reliance on the specific bar under Section 33(5) of the Act. Section 33(5) of the Act reads as follows:

"33. Procedure and powers of Special Court.--

... ... ... ...

(5) The Special Court shall ensure that the child is not called repeatedly to testify in the court."

In terms of Section 33(5) of the Act the Special Court has to ensure that the child is not called repeatedly to testify in the Court. A reading of Section 33(5) of the Act would clearly indicate the intention behind such enactment that in genuine cases the child-victim is not harassed. That would not mean that the accused can be deprived of his right to cross-examination in a trial, particularly, where offence punishable is beyond ten years. The mandatory nature to recall the witness for cross-examination, if the evidence appears to be essential, is always necessary for a just decision in a case, save in cases where repeated applications under Section 311 of the Cr.P.C. are filed on frivolous reasons.

15. The other factor that is necessary to be noticed is, the current age of the victim. The learned counsel for the petitioner has placed on record Ex.P9, the study certificate issued by the school in which the victim had studied. As on 18-01-2019 the victim was about 15 years of age as her

date of birth was 02.01.2004. As on date of filing of the application by the petitioner under Section 311 Cr.P.C. which was on 28-03-2022 the victim had crossed 18 years of age. Once the victim crosses 18 years of age, the rigor of Section 33(5) of the Act gets diluted, as it is the child-victim who shall not be called for cross-examination or re- examination repeatedly. The word 'child' is defined under Section 2(1)(d) of the Act, to mean a person below 18 years of age. On the child attaining 18 years of age, the rigor under Section 33(5) of the Act gets diluted and sequentially, will not become a bar for seeking further cross-examination of the victim under Section 311 of the Cr.P.C. It is more so in cases where the accused is alleged to have committed offences punishable under the Act as there is presumption under Section 29 of the Act against the accused. To bring in evidence contrary to the presumption is a heavy burden cast upon the accused for offences punishable under the Act. Therefore, to rebut such presumption, as also, peculiar reasons in the case at hand, the victim ought to have been permitted to be cross- examined by accepting the application seeking to recall the witness. This would be imperative to see that the trial does not result in miscarriage of justice in any manner and such miscarriage is prevented at any point of spell and juncture."

The aforesaid order would cover the case at hand on all its

fours. Therefore, in the light of the order passed by this Court

(supra), the following:

ORDER

(i) Criminal petition is allowed and the order dated 29.03.2022 passed by the Additional District and

Sessions Judge, FTSC-1, Bengaluru in Special C. No.149 of 2015 stands quashed.

(ii) The applications of the petitioner dated 26-03-2022 filed under Section 311 of the Cr.P.C. seeking recall of PW-1 and PW-2 for further cross-examination stands allowed and the petitioner shall be permitted to cross-examine PWs-1 and 2 on a particular date, to be fixed by the learned Sessions Judge, as a last opportunity and shall complete cross-examination on that particular date so fixed by the learned Sessions Judge.