The State Of Telangana vs Md Hafeez
2023 Latest Caselaw 3100 Tel

Citation : 2023 Latest Caselaw 3100 Tel
Judgement Date : 12 October, 2023

Telangana High Court

The State Of Telangana vs Md Hafeez on 12 October, 2023

Bench: G.Anupama Chakravarthy

HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

          CRIMINAL PETITION No.10137 of 2023

O R D E R:

This Criminal Petition is filed under Section 482 of the

Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') by the

petitioner/complainant - State to set aside the order dated

04.09.2023 in Crl.M.P.No.46 of 2023 in S.C.No.99 of 2018

passed by the Fast Track Special Sessions Court For

Expeditious Trial and Disposal of Rape and POCSO Act

Cases, Ranga Reddy District at Shadnagar.

2. Heard the learned Assistant Public Prosecutor for

petitioner - State and learned counsel for the

respondent/accused. Perused the record.

3. It is the specific contention of the learned Assistant

Public Prosecutor appearing for the petitioner - State that

initially the accused has filed a petition vide Crl.M.P.No.9 of

2023 in S.C.No.99 of 2018 under Section 311 of Cr.P.C to

recall the victim and other two witnesses i.e. PWs 1 to 3 for

further cross examination. It is contended that the

prosecution has filed a detailed counter in the said petition

reporting to the Court that PWs 1 to 3 were cross examined

thoroughly on every aspect and there is no need of further

cross examination; that PW3/victim girl is a physically

handicapped girl and her both legs are paralyzed due to polio

and she cannot stand or sit without the support of others

and that PWs 1 and 2 are daily wage earners and therefore,

prayed to dismiss the said petition. It is further contended

that the Court below has considered the counter of the

prosecution and dismissed the said petition on 03.07.2023

with a finding that the victim is paralytic of lower limbs and

she cannot stand or sit without the help of others and

moreover, the other witnesses are daily wagers and there is

no ground to recall PWs 1 to 3. It is further contended that

challenging the said dismissal order, the accused has not

preferred any revision or appeal and the said orders have

become final. It is contended that subsequently, another

petition i.e. Crl.M.P.No.46 of 2023 was filed under Section

311 of Cr.P.C by the accused to recall the victim and other

witnesses i.e. PWs 1 to 3, 8 and 9 for further cross

examination and the said petition was allowed on

04.09.2023 and hence, he prayed to set aside the said

orders.

4. A perusal of the record reveals that on dismissal of the

petition i.e. Crl.M.P.No.9 of 2023 filed under Section 311 of

Cr.P.C, the accused has again filed another petition i.e.,

Crl.M.P.No.46 of 2023 under Section 311 of Cr.P.C to recall

the witnesses for further cross examination. The grounds

mentioned in the said petition are that due to oversight, the

accused has not put several questions and some points are

not clarified and even proper suggestions were not put to the

witnesses. In the said petition, it is also mentioned about the

dismissal of Crl.P.No.9 of 2023 on 03.07.2023, which was

filed to recall PWs 1 to 3. The trial Court has allowed the

said petition with the following observations:

"7. ...... it is obvious the bar under Section 33(5) POCSO Act in recall of victim girl and other witnesses is not absolute where the circumstances warrants to further the cause of justice they can as well be recalled. Earlier counsel was legal aid counsel and the present counsel was engaged by the accused, after cross examination of PW1 to 3, 8 and 9. In fact, the petitioner held back the clarifications and circumstances of inconsistencies and contradictions to

be elicited on the witnesses being recalled on the ground that it may alert the prosecution".

5. The Apex Court in catena of judgments has held that

change of counsel cannot be a ground to allow the petition

filed under Section 311 of Cr.P.C for recall of witnesses.

There are no specific reasons mentioned in the petition filed

under Section 311 of Cr.P.C warranting for recall of the

witnesses. Therefore, this Court is of the considered view

that the trial Court ought not to have allowed the petition,

particularly taking into consideration that the victim girl is

paralytic of lower limbs.

6. Accordingly, the Criminal Petition is allowed and the

order dated 04.09.2023 in Crl.M.P.No.46 of 2023 in

S.C.No.99 of 2018 passed by the Fast Track Special Sessions