High Court of Meghalaya
Shri Biresh Barman vs . State Of Meghalaya & Anr. on 18 February, 2022
Serial No. 05
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl. Petn. No. 95 of 2021
Date of Decision: 18.02.2022
Shri Biresh Barman Vs. State of Meghalaya & Anr.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S. Panthi, Adv.
For the Respondent(s) : Mr. K.P. Bhattacharjee, GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. Matter taken up via hybrid mode.
2. Heard Mr. S. Panthi, learned counsel for the petitioner who has
submitted that the petitioner has approached this Court with this application,
seeking to set aside and quash the impugned order dated 07.10.2021 passed
by the learned Special Judge, (POCSO), Shillong in Spl. (POCSO) Case No.
8/2014 whereby the court was pleased to recall the complainant for further
examination and for which the examination-in-chief was recorded by the
court.
3. Briefly stating the facts, Mr. Panthi, has submitted that pursuant to an
FIR dated 29.03.2013, a case was registered as Rynjah P.S. Case No.
21(3)2013 u/s 9(n)/10 of the POCSO Act, 2012. On investigation being
completed and charge sheet filed, the matter proceeded for trial before the
learned Special Judge (POCSO), Shillong. Thereafter, evidence was led by
the prosecution and on conclusion of the same, the statement of the
accused/petitioner was recorded u/s 313 Cr.P.C and the matter was posted
for final argument on a number of dates. It may be mentioned that the
complainant when she was initially summoned for recording of her evidence
in court, had turned hostile and was accordingly, treated so by the court.
4. However, the learned Special Judge (POCSO), Shillong in course of
hearing of the matter and on perusal of the FIR, found that the signature of
the complainant therein did not tally with the signature of the same on her
deposition. The court exercising powers u/s 311 Cr.P.C took suo moto action
and recalled the complainant for re-examination. Accordingly, summon was
issued to the complainant and a date was fixed for her re-examination. She
was then re-examined on 08.11.2021, however the cross examination was
fixed for another date.
5. Mr. Panthi has argued that the learned Special Judge (POCSO) by
exercising power u/s 311 Cr.P.C for recalling a witness who has turned
hostile and by conducting a fresh examination, that too after five years
having lapse from the time she was initially examined, is nothing but to fill
up the lacuna in the prosecution's case, which shows complete non
application of judicial mind.
6. It is also submitted that the learned Special Judge, (POCSO) vide the
impugned order dated 07.10.2021 had specifically sought for the
clarification of the complainant's signature, which according to the learned
Special Judge, (POCSO) did not tally. However, without any application
seeking recall of the witness, the complainant's evidence was freshly
recorded, which is an abuse of the due process of law.
7. In support of his case, Mr. Panthi has cited the case of Rajaram Prasad
Yadav v. State of Bihar & Anr: (2013) 14 SCC 461 at paragaph 23 and the
case of Ratanlal v. Prahlad Jat & Ors: (2017) 9 SCC 340 at paragraphs 20
& 21 as well as the case of Y. Ramesh v. State of Telangana in Criminal
Petition No. 828 and 945 of 2020.
8. Per contra, Mr. K.P. Bhattacharjee, learned GA appearing for the State
respondent in support of the impugned order has submitted that the
background of the case is that the complainant's sister who is a minor of
about 11 years had complaint of being sexually assaulted on several
occasions by the accused/petitioner herein. It is also to be noted that the
accused/petitioner is the husband of the complainant and the victim is his
own sister-in-law and they were staying together in a two-room
accommodation consisting of a bedroom and a kitchen and the three of them
would sleep in the bedroom with the victim sleeping on the bed while the
complainant and the accused/petitioner would sleep on the floor. At times,
when the complainant was not in the room or had gone out of the room, the
accused/petitioner would sexually harass the victim by inappropriate
physical actions to the extent that the victim had to report the same to her
elder sister, the complainant herein and accordingly, as evident from the
record, the FIR was lodged before the police and the complaint taken
cognizance of.
9. It is also submitted that in course of trial, it is expected that perhaps
there was undue influence or coercion by the accused/petitioner to compel
the complainant to turn hostile in court when her evidence was recorded at
the first instance. However, the court noticing this aspect of the matter, and
also on observing that there is a variance in the signature appended by the
complainant in her FIR and the one in the deposition as a prosecution
witness, had thought it fit to recall the witness for fresh examination, taking
recourse to the provision of Section 311 Cr.P.C.
10. Leading this Court to the case of Manju Devi v. State of Rajasthan &
Anr: (2019) 6 SCC 203, the learned GA has submitted that the Hon'ble
Supreme Court in this case has spelled out the power and ambit of Section
311 Cr.P.C when at paragraph 10 of the same, the Court held that: -
"10. It needs hardly any emphasis that the discretionary powers like
those under Section 311 CrPC are essentially intended to ensure that
every necessary and appropriate measure is taken by the Court to keep
the record straight and to clear any ambiguity in so far as the evidence
is concerned as also to ensure that no prejudice is caused to anyone. The
principles underlying Section 311 CrPC and amplitude of the powers of
the Court thereunder have been explained by this Court in several
decisions. In Natasha Singh v. CBI (State) : (2013) 5 SCC 741, though
the application for examination of witnesses was filed by the accused but,
on the principles relating to the exercise of powers under Section 311,
this Court observed, inter alia, as under:-
" 8. Section 311 CrPC empowers the court to summon a material witness,
or to examine a person present at "any stage" of "any enquiry", or
"trial", or "any other proceedings" under CrPC, or to summon any
person as a witness, or to recall and re-examine any person who has
already been examined if his evidence appears to it, to be essential to the
arrival of a just decision of the case. Undoubtedly, CrPC has conferred
a very wide discretionary power upon the court in this respect, but such
a discretion is to be exercised judiciously and not arbitrarily. The power
of the court in this context is very wide, and in exercise of the same, it
may summon any person as a witness at any stage of the trial, or other
proceedings. The court is competent to exercise such power even suo
motu if no such application has been filed by either of the parties.
However, the court must satisfy itself, that it was in fact essential to
examine such a witness, or to recall him for further examination in order
to arrive at a just decision of the case.
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 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 CrPC must not be allowed only to fill 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 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 great caution and circumspection. The very use
of words such as "any Court", "at any stage", or "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."
11. Again, the case of V.N. Patel v. K. Niranjan Kumar & Ors: (2021) 3
SCC 661 paragraphs 16 and 21 was cited by the learned GA to submit that
here too, the Hon'ble Supreme Court has reiterated the principle on which
Section 311 of the Code was based.
12. Pointing to the impugned order, the learned GA has submitted that the
learned Special Judge, (POCSO) having considered all aspects of the matter
and holding that if the complainant is not re-examined, there will be a grave
miscarriage of justice, has accordingly passed the impugned order which in
the light of the above authorities cited cannot be termed as non-application
of judicial mind or per se illegal. It is submitted that the impugned order is
not liable to be set aside in the interest of justice.
13. On consideration of the submissions made, what can be understood, as
far as the petitioner is concerned is that, objection was taken to the fact that
the complainant who was earlier examined as PW 1 and at that point of time
had turned hostile was sought to be re-examined and eventually was re-
examined and vide the impugned order was re-examined after five years of
the initial examination and as such, it could be inferred that the same was
done only to fill up the lacuna of the prosecution's case, which has greatly
prejudiced the case of the petitioner. In fact, the intention of the court was
only to verify the signature of the complainant and not to re-examine her.
14. Another contention of the petitioner is that the court without any
application could not have taken up the matter suo moto, though it is fairly
admitted that the court has the power to recall a witness or witnesses at any
point of time during the court of enquiry or trial.
15. In the case of Ratanlal (supra), the Hon'ble Supreme Court at
paragraphs 21 and 22 had opined that the delay in filing an application for
recall of witnesses or one filed by the witnesses for re-examination is to be
considered under the facts and circumstances of the particular case for which,
an apprehension that the applicants/witnesses have been won over is a
possibility.
16. In the case of Rajaram Prasad Yadav (supra), at paragraph 23, the
Hon'ble Supreme Court has taken into consideration the fact that the second
respondent while seeking permission of the court under section 311 Cr.P.C
for his re-examination, has taken the plea that on the earlier occasion, he had
turned hostile under coercion and threat meted out to him at the instance of
the appellant, which according to the court was an afterthought and as such,
his application before the Trial Court was rightly rejected.
17. At this point of time what is required to be considered, firstly is whether
an application under Section 482 Cr.P.C is maintainable, inasmuch as, what
is required to be examined is by virtue of the impugned order, has there
occurred an abuse of the process of the court, or that the ends of justice has
been met without the necessity of interfering with the same.
18. A look at Section 311 Cr.P.C which is reproduced is necessary to
understand as to whether the impugned order was passed within the
parameters and contour of the aforesaid provision :
"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."
19. The import of the said provision of Section 311 of the Code would
lead one to understand that the court has the power to summon any person
as a witness or to recall and re-examine any person already examine, at any
stage of any inquiry, trial or other proceeding. This implies that there is no
bar or limitation, as far as the time period is concerned for the court to recall
a witness for re-examination, as was done in this case when the proceedings
or trial has not yet been concluded by the passing of a judgment.
20. The next important point to be noted in the provision referred to above
is the fact that the purpose of re-examination appears to the court to be
essential to the just decision of the case. In the case in hand, the learned
Special Judge, (POCSO) considering the materials before him had thought it
fit to re-examine the complainant. This, in the considered opinion of this
court is not an abuse of the process of the court, but rather, it is to secure
ends of justice.
21. The authority set out by the Hon'ble Supreme Court in Manju Devi's
case is explicit enough to consider it relevant to the facts and circumstances
of this case and as such, this Court is convinced that the learned Special
Judge, (POCSO) had taken an appropriate approach while passing the
impugned order.
22. On an overall consideration of the matter, this court finds that there has
been no occasion for this court to exercise its inherent power under Section
482 Cr.P.C as far as the prayer made in this petition is concerned. The
impugned order does not call for any interference. This petition is
accordingly dismissed as devoid of merits.
23. Petition disposed of. No cost.
Judge
Meghalaya
18.02.2022
"N.Swer, Stenographer"
