Litu @ Harishankar Rout Vs State of Odisha

Judge (FTSC), Angul in Special (POCSO) Case No. 62 of 2020 rejecting the application of the petitioner-accused to recall P.W.1, P.W.2, P.W.3 and P.W.4 for the cross-examination. The petitioner is

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facing trial for commission of offences punishable under Section 363, 376(3) of the IPC, read with Section 4(2) of the Protection of Children from Sexual Offences Act , 2012 ( in short “POCSO Act”)..

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BACKGROUND

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2. Prosecution case in brief is that the victim had a love affair with the petitioner and then developed a physical relationship with her giving her with the impression of marriage between them. Subsequently, both eloped, but the police rescued them as the victim was a minor. Thereafter, the petitioner was arrested and later released on bail. After the completion of the investigation, the trial commenced. PW1 - the informant, PW2 -the Victim, PW3-victim’s relative and PW4 - victim’s mother appeared before the court and deposed their evidence-in-chief before the court. Since the counsel for the accused person was suffering from illness, the cross-examination of the said witnesses was declined at that time. Thereafter, the counsel for the petitioner filed a petition to recall the witnesses on 13.09.2023, which was allowed by the learned trial court by imposing a cost of ₹1,000/- in respect of each witness. It is further stated that on 06.03.2024, when the witnesses who had been recalled were present

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in Court, the counsel for the accused person again declined to crossexamine them. Thereafter, after changing their counsel, the accused filed another petition to recall the said witnesses, which was rejected by the learned court below on 05.03.2025.

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3. The learned counsel for the petitioner has filed the depositions of the P.Ws 1 to 4 along with a memo and the same are available in the record.

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4. Perusal of the deposition reveals that P.W.1-the father of the victim was examined on 03.03.2022. P.W.2- the victim and P.W.3 her relative were examined on 03.03.2024. P.W.4- her mother was examined on 02.04.2022. They had appeared on recall on 06.03.2024.

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5. Perusal of the depositions reveals that cross-examination by the defence counsel has been declined on the date of examination of the witnesses. When the witnesses were recalled for their crossexamination on 06.03.2024 in the deposition, it has been mentioned as follows:

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“The witness is present in the dock. Accused person is present in the dock, the learned defence counsel is present,

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but he declined to further cross-examine.”

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SUBMISSIONS

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6. Mr. R. Chhotaray, learned counsel for the petitioner submits that prayer for recalling P.W.1, P.W.2, P.W.3 and P.W.4 for crossexamination had been allowed once earlier subject to payment of cost. Cost was paid, but on account of illness of the counsel for the petitioner, the witnesses could not be cross-examined, for which another application was filed for their recall for cross-examination. This application was illegally rejected by the learned trial Court. He further submits that the petitioner is facing trial for commission of offences under Sections 363, 376(3) of the IPC, read with Section 4(2) of the POCSO Act for which the cross-examination of the witnesses is essential. In the rejection order it has been mentioned that the counsel though present on both dates has declined to crossexamine the witnesses and that no documents in support of the illness of the counsel have been filed. He submits that as the defence counsel was ill, he could not examine the witnesses on both dates nor file any

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documents in support of his illness. After changing his counsel another application was filed on behalf of the accused on 22.08.2024 for recall of P.W.1, P.W.2, P.W.3 and P.W.4 for their crossexamination. He further submits that since no cross-examination has been conducted, the question of giving the list of questions have not been given. He further submits that the petitioner is facing trial for serious offences and he should not suffer on account of the laches of his counsel, who had failed to cross-examine the witnesses.

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7. Mr. S. J. Mohanty, learned Addl. Standing Counsel opposes the

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prayer for recall of P.W.1 to P.W.4 for their cross-examination submitting that

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(i) Section 33(5) of the POCSO Act prohibits calling the victim repeatedly for her testimony.

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(ii) One opportunity had been given to the petitioner for crossexamination of the witnesses, but he failed to avail the same.

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(iii) While declining to cross examine the witnesses, the illness of the

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counsel had not been brought to the notice of the learned trial Court on those days that he was ill, so it is an after thought to delay the case.

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(iv) No medical documents in support of illness of the counsel have been filed.

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(v) Not having availed the opportunity given by the trial court to cross-examine the witnesses by allowing their recall, the petitioner should not be granted further indulgence.

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(vi) The petition to recall the witnesses has been filed at a belated stage for the second time, after influencing the witnesses. So he submits that the application of the petition for recall of the witnesses for cross-examination for the second time has been rightly rejected by the learned trial Court.

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STATUTORY PROVISIONS

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8. The two provisions necessary for deciding this application are extracted below :

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’ Section – 311 of the Code of Criminal Procedure

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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

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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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Section 33 (5) of the POCSO Act

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“ Section 33. Procedure and powers of Special Court -

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(5) The Special Court shall ensure that the child is not called repeatedly to testify in the Court.”

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JUDICIAL PRONOUNCEMENTS

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9. In the case of Rajaram Prasad Yadav vs State of Bihar : 2013

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(14) SCC 46 : AIR 2013 SC 3081, a witness who had already deposed in favour of the accused wanted to resile from his earlier evidence and wanted to be re-examined on account of an incident which had occurred after he had deposed in Court . The High Court had set aside the order of the trial court which had rejected the application . While setting aside the order of the High Court , the Supreme Court held as follows:

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…“14. A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the

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Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”. By using the said expression “any” as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated

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under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and reexamination of any person already examined, the Court must necessarily consider and ensure that such recall and reexamination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.

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After referring to its earlier decisions, the Supreme Court laid down the following principles to be kept in mind by the Courts :

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“17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?

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17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and

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speculative presentation of facts, as thereby the ends of justice would be defeated.

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17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.

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17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

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17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

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17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.

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17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

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17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.

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17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

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17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.

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17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

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17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

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17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

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17.14. The power 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 care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.”

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It further held :

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..“28. We find that the factors noted by the trial Court and the conclusion arrived at by it were all appropriate and just, while deciding the application filed under Section 311 Cr.P.C. We do not find any bonafides in the application of the second respondent, while seeking the permission of the Court under Section 311 Cr.P.C. for his re-examination by merely alleging that on the earlier occasion he turned hostile under coercion and threat meted out to him at the instance of the appellant and other accused. It was quite apparent that the complaint, which emanated at the instance of the appellant based on the subsequent incident, which took place on

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30.5.2007, which resulted in the registration of the FIR in Khizersarai Police Station in case No.78/2007, seem to have weighed with the second respondent to come forward with the present application under Section 311 Cr.P.C., by way of an afterthought….”

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In the case of Bhaskar Nayak vs State of Odisha : (2023) 92

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OCR 974, where the application filed under Section -311 of the Cr.P.C to recall the victim for cross examination had been rejected by the learned trial court , this Court had permitted recall of the victim for cross examination holding as follows : -

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“ 11. From a careful reading of the provisions of Section 33( 5 ) of the POCSO Act , it is apparent that it is more in the nature of a safeguard than a bar . It provides that a child should not be called repeatedly to testify in the Court but it does not prohibit her / his recall . Therefore while considering an application to recall a victim where the accused is facing trial where one of the offences is under the POCSO Act , the provisions of Section 311 Cr.P.C (right of an accused to a fair trial) and the provisions of Section 33 ( 5 ) of the POCSO Act (protection of a child victim from harassment) , have to be kept in mind and the trial court has to be very cautious while considering the such application and allow recall only when and where it is absolutely necessary for a just decision in a

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case . It is therefore important that the questions sought to be asked to the victim should be indicated in the petition so that the trial court can examine the questions and suggestions and allow those which have not been asked earlier to the witness or are irrelevant , as these will not be necessary for a just decision in the case but may frustrate the object behind Section – 311 Cr.P.C .”

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“12………. Therefore , keeping the mandate of Section 33(5) of the POCSO Act in mind and well as the right of the accused to a fair trial , I think the interest of justice would be served, if the petitioner is permitted to file another application under Section 311 Cr.P.C. confining the questions and suggestions to essential points only.

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13. If such an application is filed by 24.05.2023, the learned trial Court shall do well to examine the same in accordance with law and after examining the questions and suggestions, allow only those questions and suggestions which it finds are relevent and necessary and reject the rest. It is also made clear that in the event such an application is allowed and P.W.1 is recalled, her cross examination should be completed on the same day without fail. The prosecution is also given the liberty to put questions to her if it is deemed necessary in the interest of justice on the same day, so that she is not unnecessarily detained in the Court.”

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DISCUSSION AND CONCLUSION

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10. The learned trial Court has rightly observed in its order dated 05.03.2025 that the petitioner has made a mockery of the proceedings

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of the Court by failing to cross-examine the witnesses on two occasions and that Section 33(5) of the POCSO Act prohibits recall of the victim repeatedly for her examination.

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11. It is true that the petitioner has not availed the opportunity granted to it by the learned trial Court when it recalled the four witnesses and no documents have been filed in support of illness of the counsel and the second application for recall has not filed immediately but after almost one year i.e. on 22.08.2024.

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12. There is an embargo in Section 33(5) of the POCSO Act, so

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far as the victim is concerned but there is no bar for recall of other witnesses, if it is necessary for a just decision in the case.

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13. But as the nature of offences the petitioner is alleged to have

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committed are serious in nature, this Court is of the view that the petitioner will be prejudiced if he is not allowed to cross examine the other witnesses.

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14. Therefore a balance has to be struck between the right of the

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accused for a fair trial and the protection afforded to the victim under the POCSO Act. Considering the embargo under Section 33(5) of the POCSO Act along with the right of the accused to a fair trial , I am not inclined to allow the prayer for recall of the victim-P.W.2 the victim.But so far as the other witnesses - P.W.1, P.W.3 and P.W.4 are concerned, I am of the view that one final chance should be given to the petitioner to cross-examine these witnesses in the interest of justice , but subject to deposit of cost of ₹3,000/- in respect of each of these three witnesses, which shall be deposited in the learned Court below within a period of eight weeks alongwith an application under Section 311 of the Cr.P.C containing the questions which the counsel proposes to ask these three witnesses. The Court below shall them fix a date for cross-examination P.W.1, P.W.3 and P.W.4 within a period of four weeks thereafter. The witnesses shall be recalled and examined on the date fixed. Adjournment for cross examination of the witnesses shall not be allowed. The cost is to be paid to these witnesses. The trial Court will have the discretion to disallow asking of any question it deems frivolous or irrelevant or against the mandate

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of the Supreme Court in the case of Rajaram Yadav (supra).

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15. It is made clear that if the petitioner does not avail this opportunity, no further chance shall be given to the petitioner for

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cross-examining the witnesses.

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16. The CRLMC is partly allowed.