The High Court dismissed an application under Section 482 Cr.P.C. to quash an order allowing a victim's re-examination under Section 311 Cr.P.C., distinguishing it from precedents due to the short delay and lack of fraud.
Impugned order allowing re-examination under S. 311 Cr.P.C. is upheld; application u/s 482 Cr.P.C. dismissed.
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Court No. - 65
Case :- APPLICATION U/S 482 No. - 28229 of 2019
Applicant :- Januki Prasad @ Janki Prasad Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Sunil Kumar Gaur Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Sri Kuldeep Kumar, Advocate holding brief of Sri Sunil Kumar Gaur, learned counsel for the accused-applicant and Sri G.P. Singh, learned A.G.A. for the State are present.
The present application has been filed with a prayer to quash the impugned order dated 2.5.2019 passed by Special Judge (POCSO, Act)/Additional Session Judge, Court No. 8, District Agra in Special Case No. 2401 of 2017 arising out of Case Crime No. 335 of 2017, under Section 376, 506 and 3/4 POCSO Act, P.S. Dauki, District Agra.
It is argued by the learned counsel for the applicant that impugned order has been passed by the trial court by, which an application u/s 311 Cr.P.C. moved by the victim has been allowed and she has been allowed to adduce evidence again. He has relied upon Ratanlal Vs. Prahlad Jat and others , 2017 (99) SCC 340, paragraph 21 and 22 of the said judgment are as follows:-
"21. The delay in filing the application is one of the important factors which has to explained in the application. In Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711 , this Court has held as under:-
"Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-71994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed".
22. Coming to the facts of the present case, PWs 4 and 5 were examined between 29.11.2010 and 11.3.2011. They were cross-examined at length during the said period. During the police investigation and in their evidence, they have supported the prosecution story. The Sessions Judge has recorded a finding that they were not under any pressure while recording their evidence. After a passage of 14 months, they have filed the application for their reexamination on the ground that the statements made by them earlier were under pressure.
They have not assigned any reasons for the delay in making application. It is obvious that they had been won over. We do not find any reasons to allow such an application. The Sessions Judge, therefore, was justified in rejecting the application. In our view, High Court was not right in setting aside the said order."
In the above mentioned case, the evidence of PW-4 and PW-5, which was permitted to be recorded after being recalled after lapse of 14 months was held to be a wrong order and the said evidence was directed to be excluded from being taken into consideration.
Learned A.G.A. has opposed the prayer of quashing the impugned order.
I have gone through the impugned order. It is mentioned in it that mother of the victim had moved an application under Section 311 Cr.P.C. stating that her daughter was raped by the accused, by which victim has received various injuries on her private part. The statement of the victim was recorded on 11.1.2019. When she was sent for deposing before the court with her father-inlaw Bhojraj under the influence of her father-in-law as well as of the accused or some other reasons, her daughter had given statement under pressure and now she was ready to give correct statement of her own free will. It was opposed from the side of accused stating that the statement of the victim was recorded in presence of her Advocate and informant of the case and that there was no occasion for any kind of pressure to be exerted upon her, hence the said application ought to have been dismissed.
Learned trial court has recorded that medical-examination report says that she has suffered injuries and whether the earlier statement dated 11.1.2019 was given by the victim of her own free will or under some kind of pressure, could be disclosed only by the victim herself and in such circumstances, application under Section 311 Cr.P.C. has been allowed by it.
The facts of the present case are totally different from the facts, which are contained in the above cited ruling, hence the benefit of the said ruling may not be extended in the present case. In the present case, about within a month, application has been moved from the side of mother of the victim that victim's statement may be recorded as earlier statement was given in court by her under some kind of pressure.
In view of above, I do not see any infirmity in the impugned order particularly having gone through the statement of victim, in which, she has stated in examination-in-chief that she has got injury by falling on wood stump, which appears to be little awkward, therefore, impugned order is upheld and application u/s 482 Cr.P.C. is dismissed.
Order Date :- 23.7.2019 A.P. Pandey
1 issue framed by the court
Whether an application under Section 311 Cr.P.C. allowing re-examination of a victim was passed with infirmity warranting quash under Section 482 Cr.P.C.
Colour shows how this judgement treated each authority
Ratanlal Vs. Prahlad Jat and othersDistinguished¶7
Ratanlal Vs. Prahlad Jat and others, 2017 (99) SCC 340 · Who else cites this
Umar Mohammad & Ors. v. State of RajasthanDistinguished¶8
Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711 · Who else cites this
2 provisions across 1 enactments
Januki Prasad
State Of U.P.
Dinesh Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
