Madhya Pradesh High Court
Kallu @ Karan Soni vs The State Of Madhya Pradesh on 19 October, 2023
Author: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
ON THE 19th OF OCTOBER, 2023
MISC. CRIMINAL CASE No. 46749 of 2023
BETWEEN:-
KALLU @ KARAN SONI S/O SHRI R S SONI,
AGED ABOUT 19 YEARS, GOSPUR NO 1
GWALIOR MP (MADHYA PRADESH)
.....APPLICANT
(BY SHRI ARSHAD ALI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
INCHARGE POLICE STATION THROUGH
POLICE STATION HAZIRA DISTRICT
GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SHIRAZ QURAISHI - PUBLIC PROSECUTOR )
This application coming on for admission this day, the
court passed the following:
ORDER
1. This petition is filed under Section 482 of the Cr.P.C for
setting aside the order dated 13.09.2023 passed by the Special
Judge, POCSO Act, 2012 District Gwalior in Case No.233/2021
whereby the application filed by the petitioner under Section of
Cr.P.C for re-calling of witness has been rejected.
2. The facts giving rise to the present petition is that the
petitioner/accused is facing trial since the year 2014 for offence
punishable under Section 363, 366, 376 of IPC. The petitioner has
filed an application under Section 311 of Cr.P.C. for recalling the
witnesses i.e. prosecutrix for further cross-examination on the
point of age, date of birth of prosecutrix, her study and on so many
other points. After hearing both the parties, Court below has
dismissed the application by impugned order, therefore, the
petitioner has challenged the said order in this petition.
03. Learned counsel for the petitioner submits that earlier a
counsel who was appointed from Legal Aid, cross-examined the
prosecutrix (PW-1) as during the cross-examination, the petitioner
was in judicial custody, hence, he could not contact the former
lawyer nor he could give material information about the said case
due to which important questions are left to be asked from the
prosecutrix. If the said questions are left to be asked then it will
adversely affect the case of petitioner.
04. Per contra, learned counsel for the respondent / State
opposed the petition and prays for its rejection.
05. Heard the learned counsel for the parties and perused the
record.
06. From perusal of interim order, it appears that prosecutrix
was earlier examined before the trial Court in which cross-
examination was held on behalf of present petitioner as accused
but was held at the instance of counsel from Legal Aid. Once
counsel from Legal Aid or appointed independently by the
accused has undertaken cross-examination of prosecutrix then
only in exceptional circumstances as envisaged in Section 311
Cr.P.C. witness can be recalled. Here no such exigency exists.
07. So far as submission of petitioner that prosecutrix and her
father deposed before the trial Court two different versions and
prosecutrix supported the story of prosecution whereas father of
prosecutrix did not support the same, therefore, witness be
recalled. It appears that this is not the correct basis on which
witness can be recalled. If cross-examination of two witnesses
carry some alleged discrepancy or inconsistency then trial Court
certainly will look into at the time of judgment.
08. Reliance over judgment by petitioner as delivered by Apex
Court in the case of V.N. Patil Vs. K. Niranjan Kumar and
others reported in (2021) 3 SCC 661, does not support the cause
of petitioner as it moved in different factual realm. Here in the
present case petitioner is trying to fill up the lacuna which is not
permissible at all.
09. In view of the above, this Court is of the considered
opinion that the impugned order passed by the Court below does
not suffer from illegality or perversity. Hence, no case for
interference under Section 482 of Cr.P.C. is made out.
Accordingly, the petition preferred under Section 482 of Cr.P.C. is
hereby dismissed.
Certified copy as per rules.
(ANAND PATHAK)
JUDGE
VAN
VANDANA VERMA
2023.10.20
17:49:17 +05'30'
