Uttarakhand High Court

Akshay Rana vs State Of Uttarakhand on 22 May, 2023

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

               Criminal Revision No.84 of 2023

Akshay Rana                                       ...... Revisionist

                                  Vs.

State of Uttarakhand                             ..... Respondent


Mr. Shubham Pandey and Mr. M.C. Upadhyay, Advocate for the applicant
Mr. Dinesh Chauhan, Brief Holder for the State

                                             Date of Order : 22.05.2023

Hon'ble Vivek Bharti Sharma, J. (Oral)

This criminal revision is directed against the

order dated 13.01.2023 passed by F.T.C./Additional

Sessions Judge/Special Judge (POCSO), Udham Singh

Nagar in Special S.T. No.163/2021, whereby the

application moved by the revisionist under Section 311 of

Cr.P.C. has been dismissed.

2. Heard on admission.

3. Learned counsel for the revisionist would

submit that the revisional court has committed illegality in

rejecting the application moved by the revisionist u/s 311

of Cr.P.C. for further cross-examination of the prosecutrix.

He would submit that father of the prosecutrix was

examined as PW2 and during his cross-examination this

fact came forward that father of prosecutrix has not lodged

any report in the matter nor the prosecutrix had told

anything to him regarding the alleged incident and that he

did not know as to what was written in the F.I.R. and the

report was submitted in the police station by the villagers.

He would further submit that recalling PW1 (prosecutrix)

for cross-examination is essential for fair and just decision

of the case as the father who is sole guardian of the victim

is showing unawareness about the incident and that

earlier counsel engaged by the revisionist could not ask

these relevant questions from the witnesses in cross-

examination. To buttress his submissions, counsel for the

revisionist has placed reliance on a judgment of Hon'ble

Madhya Pradesh High Court in re "Jagmohan Palasar vs.

State of Madhya" Pradesh, AIR (Doc 95 Madhya Pradesh).

4. On the other hand, Mr. Dinesh Chauhan, Brief

Holder appearing for the State would submit that there is

no illegality, impropriety or incorrectness in the impugned

order and the revision is liable to be dismissed as such.

5. Perusal of the impugned order shows that the

victim is aged 7 years and her examination-in-chief was

completed on 27.10.2021 and thereafter she has been

cross examined at length by the counsel for the

accused/revisionist. While dismissing the application, the

trial court observed that there cannot be any definite

standard of the ability of a lawyer to ask questions and it

would be an endless process because in future another

lawyer will come and will move the application on the

same ground. Trial court further observed that there is no

justification for summoning the victim again on the basis

of appointment of a new lawyer and if the witness/victim

is recalled then it is likely to have adverse effect on her

mental and physical health and development and it would

also cause irreparable loss to her and cited the case of

"Nazar Hussain Vs. State of Uttarakhand and another",

Criminal Misc. Application No.1917 of 2022.

6. Before the Trial Court, in support of application

moved u/s 311 Cr.P.C., it was argued by counsel for the

revisionist that there were some questions, which could

not be asked from the prosecutrix which were very

important and necessary for adjudication of trial.

7. In this context, reference may be made to

Section 311 of the Criminal Procedure Code which 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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case."

8. Section 33(5) of The Prevention of Children from

Sexual Offence Act, 2012 would also be relevant for the

purpose, which reads as under:-

"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."

9. Hon'ble Apex Court in re "Godrej Pacific Tech.

Ltd. Vs. Computer Joint India Ltd." (2008) 11 SCC 108 has

held as under:-

"6. .....The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code

(a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded.

On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant

facts.

The object underlying Section 311 of the Code 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 section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 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 whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.

As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short "the Evidence Act") are based on this rule. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a

subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge."

10. In the case at hand, the victim is aged about 7

years whose further cross-examination has been sought by

the revisionist. Thus, the child's right under Section 33 (5)

of POCSO Act has to be balanced with the rights of the

accused so as to ensure that justice is done. Perusal of the

impugned order dated 13.01.2023 shows that the learned

Trial Court has not adverted to the questions needed to be

asked by recalling the witness. Learned Trial Court has

not given the finding in the impugned order as to how

evidence of the witness prayed to be recalled and

reexamined does not appear to be essential for just

decision of the case.