Dismissed

Jawahir Saruta v. State of Chhattisgarh

Chhattisgarh HC4 Jul 2023CRMP/76/2023

Case brief

AI extract

What is this about?

The High Court dismissed a criminal miscellaneous petition challenging the trial court's rejection of an application to re-cross-examine the victim under Section 311 Cr.P.C., holding that a significant time lapse and prior extensive examination precluded such recall to prevent prejudice.

What did the court decide?

Petition dismissed at the motion stage; no interference with the impugned order rejecting the application for recall of witness.

Jawahir Saruta Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Cr.M.P. No. 76 of 2023

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Jawahir Saruta, S/o Krishn Saruta, Aged about 35 years, R/o Ramchandrapur, Police Station- Ramchandrapur, District Balrampur Ramanujganj (C.G.)

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---- Petitioner

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Versus

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State of Chhattisgarh, Through The Station House Officer, Police StationBalrampur, District- Balrampur-Ramanujganj (C.G.)

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---- Respondent

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For Petitioner : Mr. Hariom Rai, Advocate For Respondent/State : Ms. Abhyunati Singh, Panel Lawyer

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Hon’ble Shri Justice Rakesh Mohan Pandey Order on Board

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04.07.2023

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The petitioner has challenged the order dated 06.12.2022 passed by the learned Additional Sessions Judge, (F.T.S.C.) (POCSO Act), Ramanujganj, District Balrampur-Ramanujganj (C.G.), where the application moved by the petitioner under Section 311 of Cr.P.C. has been rejected.

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The facts of the case are that the petitioner was charge-sheeted for offence punishable under Sections 376, 354, 368, 506, 323, 342, 34 of IPC and Sections 4 & 6 of POCSO Act. Subsequently, the matter was being tried by the concerned trial Court. The victim was examined as PW-1 beffore the learned trial Court on 15.12.2021, and she was cross-examined at length by the petitioner's counsel.

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The petitioner then filed an application under Section 311 of Cr.P.C. seeking permission to cross-examine the victim again. The petitioner claimed that there were important questions that could not be asked during the previous cross-examination.

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The learned trial Court, vide its order dated 06.12.2022, concluded that the

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petitioner had already extensively cross-examined the victim and found no valid reason to recall the witness, as a result, the petitioner's application was rejected.

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Learned counsel for the petitioner would submit that certain questions pertaining to the FIR and the statement recorded under Section 161 of Cr.P.C. of the victim are required to be reassesed, therefore, further crossexamination of the victim (PW-1) is necessary for a fair and just decision of the case, thus, the trial Court ought to have allowed the application.

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On the other hand, the learned State counsel argues that the victim was already cross-examined on 15.12.2021 and the application seeking reexamination was preferred after a lapse of one year without assigning sufficient reason and it was dismissed vide order dated 06.12.2022 by the learned trial Court. Thus, the State counsel believes that the petition lacks merit and should be dismissed.

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I have heard learned counsel for the parties and perused the documents appended with the petition.

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It is evident that the petitioner was charged under Sections 376, 354, 368, 506, 323, 342, 34 of IPC and Sections 4 & 6 of POCSO Act. The victim was examined and cross-examined on 15.12.2021, as PW-1. The petitioner moved an application for recall of witness under Section 311 of Cr.P.C. on 26.11.2022, stating that there is insufficient material to justify the recall and law does not permit to fill up the laccuna.

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It is evident from the evidence of the victim, PW-1, that she was examined

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by the prosecution and subsequently cross-examined by the petitioner's counsel extensively, covering all the relevant aspects. Given the circumstances and the significant time lapse of one year, permission to recall the witness cannot be granted to address any perceives gaps or deficiencies in the evidence.

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10.The Section 311 of Cr.P.C. provides for the power of the Court to summon

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material witness or examine person present. It reads as follows:

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“ 311. Power to summon material witness, or examine person present . – Any Court may, at any stage of any inquiry, trial or other proceedings, 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.”

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11.The Hon'ble Supreme Court in the matter of Swapan Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328) has dealt the scope

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of Section 311 of Cr.P.C. and has held in paras – 10, 11 & 12 as under:

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“ 10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, ( i ) to summon any person as a witness; or ( ii ) to examine any person in attendance, though not summoned as a witness; or ( iii ) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court ( i ) to summon and examine or ( ii ) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

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11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The Power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.

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12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision.”

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12.In the case in hand, PW-1 victim was examined and cross-examined on

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15.12.2021, therefore, summoning the witness at a belated stage would cause great prejudice. From deposition of PW-1, it appears that she was put to lengthy cross-examination by counsel for the petitioner, where most of the questions were asked. Right to cross-examination is a part of right to fair trial, but the petitioner cannot be permitted to fill up the lacuna in the case of prosecution and the questions which are proposed by the petitioner are not going to root of the case and same will not affect the fair trial. The evidence that is likely to be tendered by a witness must be germane to the issue involved which is lacking in this case. Therefore, the learned Court below has rightly rejected the application under Section 311 of Cr.P.C. moved by the petitioner and there is no scope for interference in the order passed by the learned court below.

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13.Consequently, the instant petition is dismissed at the motion stage.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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vatti

Jawahir Saruta v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Jawahir Saruta v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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