High Court
Facts
Recall-Appln3791-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 3791 OF 2024Rushikesh s/o Bhimrao @ Pimrao WalunjkarAge:23 yrs, Occ: Agri.,R/o: Jawalke, Tq. Jamkhed, Dist. Ahmednagar....ApplicantVERSUS1.The State of MaharashtraThrough Kharda Police Station, Tq. Jamkhed,Dist. Ahmednagar(Crime No.53/2024)2.X...Y...Z...(Name and address of the first informant arenot mentioned as the case isunder provisions of POCSO Act)Mr. Sachin S. Panale, Advocate for the ApplicantMr. N. D. Batule, APP for the Respondents State.CORAM : Y. G. KHOBRAGADE, J.Dated : 12th November, 2024O R D E R:-1. By present Criminal Application under Section 482 of theCode of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.).The Applicant has impugned the order dated 19.08.2024, passed by thelearned Special Court, Shrigonda, District Ahmednagar below Exhibit 31in Special Case (POCSO) No. 44 of 2024, whereby the request for recall ofwitnesses (PW-1 and PW-2) under section 311 of the Cr.P.C. has beendeclined.Page 1 of 15
Legal Reasoning
Recall-Appln3791-24.odt“The object underlying Section 311 of the Code is that there may not befailure of justice on account of mistake of either party in bringing thevaluable evidence on record or leaving ambiguity in the statements ofthe witnesses examined from either side. The determinative factor iswhether it is essential to the just decision of the case. The section is notlimited only for the benefit of the accused, and it will not be animproper exercise of the powers of the Court to summon a witnessunder the Section merely because the evidence supports the case of theprosecution and not that of the accused. The section is a general sectionwhich applies to all proceedings, enquires and trials under the Code andempowers the Magistrate to issue summons to any witness at any stageof such proceedings, trial or enquiry. In Section 311 the significantexpression that occurs is "at any stage of inquiry or trial or otherproceeding under this Code". It is, however, to be borne in mind thatwhereas the section confers a very wide power on the Court onsummoning witnesses, the discretion conferred is to be exercisedjudiciously, as the wider the power the greater is the necessity forapplication of judicial mind.18. In an unreported order dated 13th December, 2022 (SwapnilRamesh Dhawale), cited supra, the appellant accused did not get fairopportunity to defend himself after his lawyer midway left the trial, hencethe witness was recalled.19.In Popatlal Jethabhai Shah, cited supra, the Co ordinateBench of this Court has held in paragraph Nos.4 and 5 as under:“4. No doubt Section 311 of the Code of Criminal Procedure, 1973gives power to any Court at any stage of any inquiry, trial or otherproceeding under this Code to summon any person as a witness, orexamine any person in attendance, though not summoned as awitness, or recall and re-examine any person already examined, if itis of the opinion that the evidence of that witness is essential to thejust decision of the case. It is also true that there is no limitation onPage 12 of 15 Recall-Appln3791-24.odtthe power of the Court arising from the stage to which the trial mayhave reached for examination of a witness, provided the Court isbona fide of the opinion that for the just decision of the case the stepmust be taken. It is clear from the language of the Section that therequirement of just decision of the case does not limit the action tosomething in the interest of the accused only. The action mayequally benefit the prosecution. However, the Court is required toexercise its discretion properly and judiciously. This is a very widediscretion conferred on the Court, to act as the exigencies of Justicerequire. Another aspect of this power which is complementary to it isto be found in section 165 of the Indian Evidence Act.Section 165 of the Indian Evidence Act, 1872 states as follows :“165. Judge's power to put questions or order production.- TheJudge may, in order to discover or to obtain proper proof of relevantfacts, ask a question he pleases, in any form, at any time, of anywitness, or of the parties, about any fact relevant or irrelevant: andmay order the production of any document or thing; and neither theparties nor their agents shall be entitled to make any objection toany such question or order, nor, without the leave of the Court, tocross-examine any witness upon any answer given in reply to anysuch question:…………….5. In the present case at hand, however, it seems that the Applicant/accused, inspite of engaging Advocate of his choice and afterdepositions of al the seven prosecution witnesses were recorded,vide this application, is taking frivolous contentions for recalling ofall the prosecution witnesses. It appears that the Advocate appointedby the Applicant, probably did not effectively bring out certainmaterial on record, which in the opinion of the Applicant wasnecessary, to weaken the prosecution case. The intention of theApplicant was therefore, to appoint another Advocate to effectivelycarry out this job and therefore, this application for recalling of allthe prosecution witnesses was made. This certainly is notpermissible. Therefore, the lower Court by its reasoned order, rightlyrejected that application which certainly was not a bona fideapplication. I find to infirmity In the impugned order. The intentionin invoking the provisions of Section 311 of the Cr.P.C. is to furtherthe cause of justice. But in the present case at hand, the intention ofthe Applicant certainly appears to abuse the process of law. This isPage 13 of 15 Recall-Appln3791-24.odtdeplorable. Hence, the following order :Criminal Revision Application No. 2 of 2001 is rejected. Theproceedings in the lower Court to proceed In accordance with law."20. Reverting back to the facts of the present case, it appears thatas observed in foregoing paragraphs, initially, the Applicant was reluctantto engage the counsel to defend his case. Thereafter, a legal practitioner,who obtained the signature of the Applicant/Accused on vakalatnamawith the permission of the court, appeared in the matter and in hispresence charge against the Applicant/Accused was framed on14.06.2024. The Applicant/ Accused was enlarged on bail vide orderdated 23.08.2024. However, when he was in judicial custody, theprosecution examined PW-1 victim and her mother PW-2, but prior toentering both these witnesses into witness box, the Court suo motoappointed the counsel from the Legal Aid to defend the case on behalf ofthe accused. If the accused was really intended to give instructions, in thatevent, he could have given application to the jail authority for meetingwith his defence counsel. Therefore, it appears that the Applicant/Accusedwants to delay the trial as he released on bail and wanted enjoy liberty,which shows malafide intention. Needless to say that, after engaginganother private counsel, the Applicant/Accused filed an Application Exh.31 on 26.07.2024 for recalling of the witnesses with intention to fill-upthe lacuna/loopholes as well as to delay the trial.Page 14 of 15
Arguments
Recall-Appln3791-24.odt2. The learned Counsel tor the applicant canvassed that presentApplicant/accused alongwith others were charge sheeted for the offencespunishable under sections 376(2)(n), 107, 109, 506 of Indian Penal Code,1860 (I.P.C.) and under sections 4, 6 and 17 of Protection of ChildrenFrom Sexual Offences Act, 2012 ( POCSO Act) and under Section 128(1)and 194(C) of the Motor Vehicles Act, 1988 in connection with Crime No.53/2024, registered on 11.03.2024 with Kharda Police Station, Tq.Jamkhed, Dist. Ahmednagar. The Applicant was apprehended on14.03.2024 in connection with said crime and he was released on bailvide order dated 23.08.2024, passed in Bail Application No. 1125 of 2024by this Court.3. After due investigation, a charge sheet came to be filedagainst the Accused persons on 10.05.2024. Thereafter, on 14.06.2024,the charges against the Applicant and others were framed. Since thepresent applicant/ accused did not engage any counsel to defend his case,hence, the matter was adjourned to 15.07.2024, the date on which theprosecutrix was personally appeared, but the Applicant/Accused could notarrange the Advocate for defending his case. Therefore, on oral request ofthe Applicant, time was granted for engaging an Advocate. However, theaccused did not engage any counsel inspite of opportunity being granted.Therefore, the Court suo moto appointed a counsel for him namely Adv.Page 2 of 15 Recall-Appln3791-24.odtMrs. Vijaya N. Jadhav from the legal aid panel to defend the case of theApplicant/Accused.4. The learned counsel appearing for the Applicant canvassedthat, the charges against the Applicant/Accused are very vague. TheApplicant did not get an opportunity to give instructions to his counselwho came to be appointed from legal aid panel. So also, crossexaminations of PW-1 and PW-2 were conducted through the counselappointed from the legal aid, but no cross examination was conductedupto the mark. Therefore, on 26.07.2024, the Applicant/Accused engageda private counsel and thereafter filed Exh.31 an application U/s 311 of theCr.P.C. (Section 348 of BNSS, 2023 ) and prayed for recalling of witnessesPW-1 and PW-2 for further cross examination.5. The learned counsel appearing for the Applicant/Accusedcanvassed that, on 15.07.2024, when the substantive evidence of theprosecutrix was recorded, the Court suo moto appointed a lawyer from theLegal Aid Panel, but the Applicant/Accused had not given oral or materialdocuments to said counsel to prove that he is innocent and he has beenfalsely implicated in the crime. The charge against the Applicant is ofserious nature and the lawyer appointed from the legal aid was forced tocross examine the prosecutrix on the same day. Therefore, the trial courtPage 3 of 15 Recall-Appln3791-24.odtwas interested in completing the substantive evidence withoutsafeguarding the right of the accused, hence, serious prejudice caused tothe Applicant. It is further canvassed that, the lawyer appointed from thelegal aid panel has not conducted full fledge cross examination of boththe witnesses, therefore, prayed for recalling of PW-1 and PW-2 for furthercross examination.6. The learned counsel for the Applicant further canvassed thatduring the course of cross examination, the counsel appointed from thelegal aid failed to put proper questions to the witnesses and no omissionsand contradictions were brought on record. Though, the statementsrecorded u/s 161 and 164 of Cr.P.C. are available on record, but noquestions were asked in that regard. However, the learned Special Courtfailed to consider the facts and circumstances of the case and passed theimpugned order, which is illegal and bad in law. To buttress hissubmissions, the learned counsel for the Applicant placed reliance on thefollowing cases -(1) Hoffman Andreas Vs. Inspector of Customs, (2000) 10 SCC 430(2) Varsha Garg Vs. State of Madhya Pradesh, AIR 2022 SC (Criminal)1253(3) P. Sanjeeva Rao Vs. the State of A. P., AIR 2012 SC 2242(4) Order dated 13.12.2022 in Criminal Appeal No. 131 of 2018,Page 4 of 15 Recall-Appln3791-24.odtSwapnil Ramesh Dhawale Vs. The State of Maharashtra. 7. Per contra, the learned APP supported the findings recordedby the learned Special Court and canvassed that the Applicant/Accusedwas given sufficient opportunity to engage counsel at his own choice, butthe Applicant/Accused did not avail the said opportunity at the initialstage. Thereafter, the court suo moto appointed the counsel from the legalaid panel for defending cause of the applicant. The counsel appointedfrom legal aid panel conducted thorough cross examination of PW-1 andPW-2. Merely the Applicant/Accused subsequently engaged privatecounsel, it cannot be the ground for recalling of the witness by invokingsection 311 of the Cr.P.C. In support of his submissions the learned APPplaced reliance on the case of Popatlal Jethabhai Shah Vs. State ofMaharashtra, 2002 Cri.L.J. 794.8. Having regard to the submissions canvassed on behalf of bothsides, I have gone through the record. It is a matter of record that thepresent Applicant/Accused alongwith other accused is facing trial for theoffences punishable under sections 376(2)(n), 107, 109, 506 of I.P.C.,under Sections 4, 6 and 17 of POCSO Act and under Sections 128(1) and194(C) of the Motor Vehicles Act in connection with Crime No.53/2024registered on 11.03.2024 with Kharda Police Station. It is also a matter ofPage 5 of 15 Recall-Appln3791-24.odtrecord that on 14.03.2024, the Applicant/Accused was arrested andinitially he was remanded in police custody, but subsequently he wasremanded in judicial custody. It a matter of record that at the time ofincident, victim (PW-1) was 13 years old. Therefore, the victim is a childwithin the meaning of Section 2(d) of the POCSO Act. 9.As per circular dated 15.02.2023 issued by the POCSOCommittee of this Court, charge is required to be framed within a periodof one month from filing of the charge-sheet and evidence is required tobe completed within a period of two months from the date of framing ofcharge, if the offence pertains to POCSO Act. In the case in hand, it primafacie appears that, on 10.05.2024, the Investigating Officer filed chargesheet against the Applicant/Accused and others. The Special Court hastaken cognizance on 06.06.2024. 10.Section 35 of the POCSO Act provides that evidence of thevictim child shall be recorded within a period of one month from the dateof cognizance of the offence. However, after filing of the charge sheet, theApplicant/accused moved an application for bail bearing M. A. No. 357 of2024 which was rejected on 14.06.2024. Thereafter, on 14.06.2024, thecharges as against the Applicant/Accused and others were framed afterhearing Advocate Y. P. Lekurwale, who secured the applicant’s signature onPage 6 of 15 Recall-Appln3791-24.odtVakalatnama with permission of the court. So also, the Applicant/Accusedmoved an application for bail bearing B.A. No. 1125 of 2024. On23.08.2024, this Court (Coram: S. G.Mehare, J.) enlarged the accused onbail. However, on 26.06.2024, the prosecution had already submitted thelist of witnesses and report under section 294 of Cr.P.C. Accordingly,witness summons were issued. The Applicant/Accused had submitted anApplication Exh. 19 for grant of time to appoint advocate and the saidapplication was allowed. Thereafter, the applicant/accused through hisnewly appointed counsel filed Exh. 31 an application u/s 311 of Cr. P. C.and prayed for recalling of PW-1 & PW-2 only on ground that, he had notgiven any instructions to the counsel appointed from Legal Aid Panel andno proper cross-examination of both the witnesses are conducted. So also,no omission and contradictions were put to the witnesses. 11.On 19.08.2024, the learned Special Court, Shrigonda passedthe impugned order below Exh. 31 and rejected the application holdingthat, both the witnesses (PW-1 and PW-2) are thoroughly cross examinedon behalf of the Applicant/Accused and though sufficient opportunitieswere granted, but the Applicant/Accused initially did not engage counselof his own choice. So also, on 02.07.2024 and 15.07.2024, victim PW-1and her mother PW-2 were present in the Court. On 15.07.2024, theInformant’s counsel Adv. Shri S.K. Patil, APP Smt. P. K. Kapse and AdvocatePage 7 of 15 Recall-Appln3791-24.odtShri S.P. Deshmukh for Accused Nos. 2 and 3 were present in the Courthall. The Informant’s counsel and counsel for Accused Nos. 2 and 3 madea statement that the matter is compromised. However, considering thepast conduct of applicant/accused No.1, the Court suo moto appointed anAdvocate Smt. Vijay Jadhav from the Legal Aid Panel, who has 30 yearspractice to defend the case of Accused No.1/Applicant. On perusal of thecross examination of PW-1 and 2 conducted on behalf of accused No.1, nopeculiar facts and circumstances have been made out by the presentApplicant/Accused to recall both the witnesses for further crossexamination.12. The learned Special Court passed the impugned order andspecifically observed that Adv. Shri Jay Bhosale had requested foradjournment, hence, matter was kept for hearing on 15.07.2024 as perconvenience of said counsel. However, on 15.07.2024, the counsel for theApplicant/Accused did not file appearance and did not appear in thematter. On perusal of the impugned order, it depicts that the victim PW-1and her mother PW-2 were present in the Court on 02.07.2024 as well ason 15.07.2024. So also, Counsels for accused Nos. 2 and 3 as well asprosecutrix were present in the Court and statement was made on behalfof accused Nos. 2 and 3 that matter is compromised, however, both thewitnesses were stick up with their stand. Therefore, considering thePage 8 of 15 Recall-Appln3791-24.odtconduct of the present Applicant/Accused, the learned Special Court suomoto appointed a counsel from the Legal Aid Panel to defend on behalf ofthe present Applicant/accused. The learned Special Court further observedthat Adv. Mrs. Vijaya Jadhav who is appointed from the legal aid panel ishaving 30 years of practice. Therefore, it cannot be said that the counselappointed from the legal aid panel was not having advocacy skill toconduct the cross examination. 13. Though, the learned counsel appearing for the Applicantcanvassed that no instructions were given by the accused to the counselwho was appointed from the legal aid panel, hence, no proper crossexamination was conducted. However, the Applicant has not brought anymaterial on record to show that why he was prevented from givinginstructions to his counsel who was appointed from the legal aid panel.14.The Applicant/Accused placed depositions of PW-1 victimand PW-2 on record. On perusal of the cross examinations of PW-1 andPW-2, it appears that the counsel appointed from the Legal Aid Panel hasthoroughly conducted the cross examinations and nothing has been left tobring on record to discard the testimony of PW- 1 & PW- 2. Not only this,even the defence counsel put appropriate questions pertaining to thestatements recorded under section 161 and 164 of Cr.P.c. Page 9 of 15 Recall-Appln3791-24.odt15. In the case of Hoffman Andreas, cited supra, the defencecounsel was died during the pendency of the trial and new counsel wasappointed, who was not aware of the defence strategy of the formercounsel and was also unaware of the reason for which the former counselhad not put further questions on certain aspects. Under the circumstance,the Hon'ble Apex court observed in Paragraph Nos. 6, 7 and 8 as under:"6. Normally, at this late stage, we would be disinclined to open upa closed trial once again. But we are persuaded to consider it inthis case on account of the unfortunate development that tookplace during trial i.e. the passing away of the defence counselmidway of the trial. The counsel who was engaged for defendingthe appellant had cross-examined the witnesses but he could notcomplete the trial because of his death. When the new counseltook up the matter he would certainly be under the disadvantagethat The could not ascertain from the erstwhile counsel as to thescheme of the defence strategy which the predeceased advocatehad in mind or as to why he had not put further questions oncertain aspects. In such circumstances, if the new counsel thoughtto have the material witnesses further examined the Court couldadopt latitude and a liberal view in the interest of justice,particularly when the Court has unbridled powers in the matter asenshrined in Section 311 of the Code. After all the trial is basicallyfor the prisoners and courts should afford the opportunity to themin the fairest manner possible.7. We think that the plea of the defence that a further opportunityto put more questions to the three prosecution witnesses can bepermitted on account of the unfortunate death of the defencecounsel pendente lite, and a new counsel has to evolve his defencestrategy afresh.".8. We make note of the fact that the new defence counsel filed thesaid petition for recalling the prosecution witnesses even beforethe accused was called upon to enter on his defence." 16. In the case of Varsha Garg, cited supra, the Hon'ble ApexPage 10 of 15 Recall-Appln3791-24.odtCourt observed as under:"Court is aptly empowered to summon any person as a witness orto examine any person in attendance, though not summoned as awitness and recall and re-examine any person who has alreadybeen examined. This power can be exercised at any stage of anyinquiry, trial or other proceeding under the CrPC. The latter part ofS. 311 states that the Court 'shall summon and examine or recalland re-examine any such person' if his evidence appears to theCourt to be essential to the just decision of the case. S. 311contains a power upon the Court in broad terms. The statutoryprovision must be read purposively, to achieve the intent of thestatute to aid in the discovery of truth. First part of the S. 311 usesthe expression 'may' which postulates that the power can beexercised at any stage of an inquiry, trial or other proceeding. Thelatter part of the provision mandates the recall of a witness by theCourt as it uses the expression 'shall summon and examine orrecall and reexamine any such person if his evidence appears to itto be essential to the just decision of the case'. Essentiality of theevidence of the person who is to be examined coupled with theneed for the just decision of the case constitute the touchstonewhich must guide the decision of the Court. The first part of thestatutory provision is discretionary while the latter part isobligatory. Power to summon witness is couched in the widestpossible terms and calls for no limitation, either with regard to thestage at which it can be exercised or the manner of its exercise.Power of the Court is not constrained by the closure of evidence.Therefore, it is amply clear from the above discussion that thebroad powers u/S. 311 are to be governed by the requirement ofjustice. The power must be exercised wherever the court finds thatany evidence is essential for the just decision of the case. Thestatutory provision goes to emphasise that the court is not ahapless bystander in the derailment of justice. Quite to the an aidin the realization of justice is manifest.17.In case of P. Sanjeeva Rao, cited supra, the Hon'ble ApexCourt observed as under:Page 11 of 15
Decision
Recall-Appln3791-24.odt21. Therefore, as per the ratio laid down in the case of PopatlalJethabhai Shah, cited supra, the witness whose cross examination has notbeen properly conducted by the previous counsel cannot be recalled, if theaccused engages another counsel. In the case in hand, the presentApplicant/Accused has filed Exh. 31, an application under section 311 ofthe Cr.P.C. for recalling of the witness after he engaged the new counsel.The learned Special Court has passed the impugned order and rightlyrejected the application Exh.31 on ground that cross examinations of PW-1victim and her mother PW-2 were already conducted by the previouscounsel of the Applicant/Accused. 22. In view of the above, I do not find any sufficient ground tointerfere with the order passed by the learned Special Court. Hence, theCriminal Application is rejected. ( Y. G. KHOBRAGADE, J. )JPChavanPage 15 of 15