Madehpura (Bihar) v. State of Chhattisgarh through the Station House Officer, Police
Case Details
1 A ANNAJEE RAO Digitally signed by A ANNAJEE RAO Date: 2025.08.01 13:14:21 +0530 2025:CGHC:36189 HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2339 of 2025 Sushil Kumar Podar S/o Bahadur Podar Aged About 22 Years R/o Village- Madehpura, Near Kiran Public School, Police Station - Khamariya, District- Madehpura (Bihar) ... Petitioner versus State of Chhattisgarh through the Station House Officer, Police 1. Station - Kondagaon, District- Kondagaon (C.G.). 2 - Xyz Nil ... Respondents For the petitioner
Legal Reasoning
"11. It is well settled that the power conferred 4 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 wide 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.” (Emphasis supplied) 9. In the instant case, though this Court possesses inherent powers under Section 528 of the BNSS (similar to Section 482 of the CrPC) to meet the ends of justice, but in absence of valid reasons shown by the accused/applicant in his application seeking recall/re-examination of witnesses, it is not automatically open to invoking Section 311 of the CrPC (or its equivalent in BNSS, Section 348) for re-examining witnesses like the victim girl, her mother, and the headmaster to prove the incident and age in every case. It would not be appropriate to exercise the inherent power merely on the basis of change of the lawyer. Hence, I do not find any infirmity in the impugned order warranting interference by this Court. 10.
Arguments
: Mr. D.N. Prajapati, Advocate For the State : Mr. K. K. Bahrani, Panel Lawyer. (Hon’ble Shri Justice Sanjay Kumar Jaiswal) Order on Board 25/07/2025 1. In this petition filed under Section 528 of Bhartiya Nagrik Suraksha Sanhita, 2023 the petitioner prays for quashing the impugned order dated 16.07.2025 passed in Special POCSO Case No. 47/2024 by the learned Additional Sessions judge (FTSC) (POCSO), Kondagaon, District Kondagaon (C.G) whereby the application filed under Section 311 of Cr.P.C., by the petitioner/accused, has been dismissed. 2. The brief facts of the case are that the petitioner is standing trial for the offence punishable under sections 376(3), 376(2) of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 in Special 2 Sessions case No.47/2024 before the learned ASJ, Fast Track Special Court (POCSO) Kondagaon. The statements of victim (P.W.1), her mother (P.W.2) and the Headmaster (P.W.3) have been recorded, but according to the petitioner during their examination and cross examination, some material questions relating to age of prosecutrix and the incident were not asked by previous counsel from witnesses P.W.1, P.W.2 & P.W.3. Therefore he filed an application u/s 311 of CrPC before the trial Court for recalling the material witnesses i.e., prosecutrix, her mother and Headmaster for their cross examination and by impugned order dated 16.07.2025, the trial Court rejected the said application. 3. Learned counsel for the applicant submits that statements the prosecutrix, her mother and Headmaster of the school whose statements are substantive peace of evidence have recorded by the trial Court and during their examination/cross-examination certain substantial questions were left by the earlier counsel therefore, those questions remained unanswered. He submits that learned trial Court has completely ignored the provisions of section 311 of CrPC and rejected the application for recalling the witnesses though it vested with a wide power to summon and examine or recall and re-examine any material witness at any stage and closing of prosecution evidence is not bar. He placed reliance on a decisions of the Supreme Court in Rajaram Prasad Yadav Vs. State of Bihar (2013) 14 SCC 461 and Iddar v. Aabida AIR 2007 SC 3029. 4. Per contra, learned State Counsel opposes the contention of the petitioner and submits that strong and valid reasons ought to have been assigned by the petitioner for recalling the witnesses and in absence thereof, the power under Section 311 CRPC should not have been invoked to entertain the application, therefore, the trial Court has rightly passed the order rejecting the application u/s 311 CrPC, which needs no interference. 3 5. I have considered the submissions made by learned counsel for the petitioner as also the learned State Counsel. 6. A perusal of the trial court order shows that all the prosecution witnesses in the case have been examined. Evidence of victim girl (A.W.1), her mother (P.W.2) were recorded on 09.01.2025 and the evidence of the Head Mater Thakur Ram Bariha (A.W.3) was taken on 03.02.2025 and after examination and cross examination, they were discharged. The application filed by the accused u/s 311 CrPC states that cross- examination could not be done by the previous defence counsel by giving proper suggestions and cogent and valid reasons have been shown to exercise the power u/s 311 CrPC. 7. The learned trial Court recorded the fact that almost 5-6 months back the statements of victim (P.W.1), her mother (P.W.2) and Headmaster (P.W.3) were recorded and the application u/s 311 CrPC. has been filed after almost three months of the evidence of these witnesses. It further held that Section 33(5) of the Protection of Children from Sexual Offences Act 2012 provides that the child should not be called repeatedly for trial in the court and if a new counsel appearing on behalf of the accused in the case, it does not seem appropriate to summon the victim P.W.1, P.W.2 & P.W.3 for their recross-examination. Therefore, the trial court rejected the application filed by the accused applicant u/s 311 Cr.P.C and fixed the case for evidence of accused. 8. In Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328, the Supreme Court held that the power under Section 311 of the Cr.P.C. should be invoked by the Court only to meet the ends of justice. It is to be exercised for strong and valid reasons and with great caution and circumspection. It cannot be exercised at the mere whims and fancies of the accused. Para 11 is relevant and quoted hereinbelow :
Decision
In view of the above discussion, I find no merit in the present petition. The same is, accordingly, dismissed. Sd/- (Sanjay Kumar Jaiswal) Judge Rao