High Court
Legal Reasoning
( 9 ) 3 cri apln 3913.24examination of the victim and application for adjournment came to be filed.Thereafter, the Applicant-Accused engaged another counsel and filed Exh.19application under Section 311 of the Cr.P.C., for recalling of Victim-P.W.1. 13.On perusal of Exh.19 application for recalling of witness, itappears that the Applicant-Accused set out a ground that his previous counselhas not properly cross-examined the victim and inadvertently some majorcross-examination, suggestions and denial were remained to be brought onrecord. On 03.09.2024, the learned Special Court passed the impugned orderconsidering the law laid down in case of Madhab Chandra Pradhan and Ors.V/s. State of Odisha in Special Leave Petition (Cri.) No.10082/2024 judgmentdated 05.08.2024, wherein it has been held that, when the victim has beenexamined and cross-examined at length twice already, mechanically allowingan application for recalling the victim, especially in trial of offences under thePOCSO Act would defeat the very purpose of the statute.14.In case of AG V/s. Shiv Kumar Yadav cited (supra), the Hon'bleSupreme Court has held that, the witness cannot be recalled merely on theground that the cross-examination was not properly conducted.15.In Popatlal Jethabhai Shah V/s. State of Maharashtra; 2002Cri.L.J. 794, the Coordinate Bench of this Court has held in paragraph Nos.4 ( 10 ) 3 cri apln 3913.24and 5 as under:“4. No doubt Section 311 of the Code of Criminal Procedure, 1973 givespower to any Court at any stage of any inquiry, trial or other proceeding underthis Code to summon any person as a witness, or examine any person inattendance, though not summoned as a witness, or recall and re-examine anyperson already examined, if it is of the opinion that the evidence of thatwitness is essential to the just decision of the case. It is also true that there isno limitation on the power of the Court arising from the stage to which the trialmay have reached for examination of a witness, provided the Court is bonafide of the opinion that for the just decision of the case the step must be taken.It is clear from the language of the Section that the requirement of justdecision of the case does not limit the action to something in the interest of theaccused only. The action may equally benefit the prosecution. However, theCourt is required to exercise its discretion properly and judiciously. This is avery wide discretion conferred on the Court, to act as the exigencies of Justicerequire. Another aspect of this power which is complementary to it is to befound 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.- The Judgemay, in order to discover or to obtain proper proof of relevant facts, aska question he pleases, in any form, at any time, of any witness, or of theparties, about any fact relevant or irrelevant: and may order theproduction of any document or thing; and neither the parties nor theiragents shall be entitled to make any objection to any such question ororder, nor, without the leave of the Court, to cross-examine any witnessupon any answer given in reply to any such question:…………….5. In the present case at hand, however, it seems that the applicant/accused, inspite of engaging Advocate of his choice and after depositions of altthe seven prosecution witnesses were recorded, vide this application, is takingfrivolous contentions for recalling of all the prosecution witnesses. It appearsthat the Advocate appointed by the applicant, probably did not effectivelybring out certain material on record, which in the opinion of the applicant wasnecessary, to weaken the prosecution case. The intention of the applicant wastherefore, to appoint another Advocate to effectively carry out this job andtherefore, this application for recalling of all the prosecution witnesses wasmade. This certainly is not permissible. Therefore, the lower Court by itsreasoned order, rightly rejected that application which certainly was not a bona ( 11 ) 3 cri apln 3913.24fide application. I find to infirmity In the impugned order. The intention ininvoking the provisions of Section 311 of the Cr.P.C. is to further the cause ofjustice. But in the present case at hand, the intention of the applicant certainlyappears to abuse the process of law. This is deplorable. Hence, the followingorder : Criminal Revision Application No. 2 of 2001 is rejected. The proceedings inthe lower Court to proceed In accordance with law."16.Therefore, considering the law laid down by this Court in PopatlalJethabhai Shah, AG V/s. Shiv Kumar Yadav cited (supra), the witness whosecross-examination has not been properly conducted by previous counselcannot be recalled if the Accused engages another counsel. In the case inhand, the learned trial Court passed the impugned order and rejected theapplication of the Applicant-Accused on the ground that, the victim PW1cannot be recalled after her cross-examination was previously conducted bythe counsel for the Accused at length.17. Needless to say that, if the Accused has left any lacuna in thecross-examination of any witness, the said witness cannot be recalled to fill upthe lacuna left by the Accused by invoking powers conferred under Section311 of Cr.P.C. Therefore, I do not find any substantial grounds to interferewith the findings recorded by the Special Court. In view of above discussion,this application is hereby dismissed. [Y.G. KHOBRAGADE, J.]mub
Arguments
( 1 ) 3 cri apln 3913.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD3 CRIMINAL APPLICATION NO. 3913 OF 2024RADHAKISHAN JAGANNATH MURUMKARVERSUSTHE STATE OF MAHARASHTRA…..Advocate for Applicant : Mr. Suryawanshi Surendra & Vyenkatrao ShivnandaAPP for Respondents/State : Mr. N.D. Batule…..CORAM : Y.G. KHOBRAGADE, J.DATE :21.10.2024P. C.:-1.By the present Application under Section 482 of Code of CriminalProcedure, 1973 (for brevity Cr.P.C.) the Applicant has impugned the orderdated 03.09.2024 passed below Exh. 19 in Special Case No.100/2023 by thelearned Special Court and Additional Sessions Judge, Shrigonda, Dist.Ahmednagar, whereby the learned Additional Sessions Judge has declined toallow the application made under Section 311 of the Cr.P.C. for recalling ofPW1-victim.2.The present Applicant-Accused is facing trial for the offencespunishable under Section 376 (2), (f), (i), 363 of the Indian Penal Code 1860(for brevity I.P.C.) read with Section 4, 6 and 18 of the Protection of Childrenfrom Sexual Offences Act, 2012 (for brevity POCSO Act) in Crime No. ( 2 ) 3 cri apln 3913.24262/2023 registered with Jamkhed Police Station, Tq. Jamkhed, Dist.Ahmednagar. On 21-06-2023, the Applicant/Accused came to be apprehendedin connection with Crime No. 262/2023. On 16.08.2023, the InvestigationOfficer has filed a charge-sheet against the Applicant/Accused. On18.08.2023, the Applicant-Accused filed Exh.3 an application for grant of bail.On 11.10.2023, the learned Special Court passed an order below Exh. 3 anddeclined to grant bail to the accused. On 06.10.2023, the learned trial Courtframed charge at Exh. 7 and posted the matter for list of witnesses.Accordingly, on 30.10.2024, the learned Special Court issued witnesssummons.3.On perusal of record it appears that, on 16.10.2023, the matterwas posted for recording of evidence of the prosecution witnesses, however,due to non-availability of muddemal property and C.A. Report, the evidencecould not be recorded. Subsequently, the matter was adjourned to08.12.2023, 26.12.2023, 10.01.2024, 30.01.2024, 17.02.2024, 04.03.2024,20.03.2024, 12.04.2024, 04.05.2024, 24.05.2024, 18.06.2024, 02.07.2024and lastly it was posted on 15.07.2024.4.It is a matter of record that, on 15.07.2024, the Victim P.W. 1 enteredinto the witness box and her examination-in-chief came to be recorded.However, the defence counsel filed Exh.12 an application for adjournment, ( 3 ) 3 cri apln 3913.24but said request was orally declined by the learned trial Court and defenceside was called upon to conduct the cross-examination of the victim on theground that Victim-P.W.1 was attending the Court by traveling 70 kms andanother ground that under Section 33 (5) of the POCSO Act, there is bar tocall the victim repeatedly in Court. Then the defence counsel thoroughlyconducted the cross-examination of the P.W. 1-victim. On completion of cross-examination there was no further examination and cross-examination.Therefore, the evidence of the Victim/PW1 was closed. After cross-examination was over, the learned Special Court passed an order below Exh.12 application for adjournment.5. On face of record, it prima facie appears that subsequent tocross-examination of the victim P.W.1, the Applicant-Accused engagedanother counsel who has filed Vakalatnama. Thereafter, the Applicant-Accused has filed Exh.19, application under Section 311 of the Cr.P.C. andprayed for recalling of Victim-P.W.1 on the ground that the previous counseldid not cross-examine the Victim (PW1) properly and inadvertentlysuggestions and denial have not been brought on record.6. It is the contention of the Applicant that previous counsel of theAccused conducted cross-examination of the Victim (PW1) hastily and no fairand proper opportunity of trial was granted to the accused. The learned ( 4 ) 3 cri apln 3913.24counsel for the Applicant/Accused canvassed in vehemence that, the learnedSpecial Court failed to consider the fact that, the previous counsel failed toconduct the cross-examination of the victim properly and inadvertentlysuggestions and denial were not brought on record. Therefore, it is necessaryto quash and set aside the impugned order dated 03.09.2024 passed belowExh. 19 in Special Case No.100/2023 with further prayer to recall the P.W.1-Victim for further cross examination u/s 311 of Cri. P.C.7.In support of these submissions, the learned counsel for theApplicant has placed reliance on the case of Pyarelal Lilaram Tagde V/s. Stateof Maharashtra; AIR Online 2019 Bom.1307, wherein, the Co ordinate Benchof this Court has held in Paragraph Nos. 8 and 9 as under:“8. The learned counsel for the applicant has correctly relied upon judgment ofthe Hon'ble Supreme Court in the case of Iddar vs. Aabida (supra), wherein theHon'ble Supreme Court has laid down in the context of Section 311 of theCr.P.C. as follows:-"10. The section is manifestly in two parts. Whereas the word used in thefirst part is "may", the second part uses "shall". In consequence, the firstpart gives purely discretionary authority to a Criminal Court and enablesit at any stage of an enquiry, trial or proceeding under the Code : (a) tosummon any one as a witness, or (b) to examine any person present inCourt, or (c) to recall and re-examine any person whose evidence hasalready been recorded. On the other hand, the second part is mandatoryand compels the Court to take any of the aforementioned steps if the newevidence appears to it essential to the just decision of the case. This is asupplementary provision enabling, and in certain circumstancesimposing on the Court the duty of examining a material witness whowould not be otherwise brought before it. It is couched in the widestpossible terms and calls for no limitation, either with regard to the stageat which the powers of the Court should be exercised, or with regard to ( 5 ) 3 cri apln 3913.24the manner in which it should be exercised. It is not only the prerogativebut also the plain duty of a Court to examine such of those witnesses asit considers absolutely necessary for doing justice between the State andthe subject. There is a duty cast upon the Court to arrive at the truth byall lawful means and one of such means is the examination of witnessesof its own accord when for certain obvious reasons either party is notprepared to call witnesses who are known to be in a position to speakimportant relevant facts.11. The object underlying Section 311 of the Code is that there may notbe failure 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 an improperexercise of the powers of the Court to summon a witness under theSection merely because the evidence supports the case for theprosecution and not that of the accused. The section is a general sectionwhich applies to all proceedings, enquiries and trials under the Code andempowers Magistrate to issue summons to any witness at any stage ofsuch 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."9. The aforesaid position of law makes it clear that the Courts are expected toadopt a liberal approach while exercising power under Section 311 of theCr.P.C. to ensure that exercise of such power would assist the Court in arrivingat the truth of the matter. Applying the aforesaid yardstick, it becomes clear thatthe Sessions Court in the present case committed an error in rejecting theapplication filed by the applicant for recall of witnesses.”8.The learned counsel appearing for the Applicant further placedreliance on the case of Varsha Garg V/s. State of Madhya Pradesh; AIR 2022SC (Criminal) 1253, wherein the Hon’ble Supreme Court has held that the ( 6 ) 3 cri apln 3913.24Court is aptly empowered to summon any person as a witness or to examineany person in attendance, though not summoned as a witness and recall andre-examine any person who has already been examined. This power can beexercised at any stage of any inquiry, trial or other proceeding under theCrPC. The latter part of S.311 states that the Court shall summon andexamine or recall and re-examine any such person' if his evidence appears tothe Court to be essential to the just decision of the case. Section 311 of Cr. P.Ccontains a power upon the Court in broad terms. The statutory provision mustbe read purposively, to achieve the intent of the statute to aid in the discoveryof truth. First part of the Section 311 uses the expression 'may' whichpostulates that the power can be exercised at any stage of an inquiry, trial orother proceeding. The latter part of the provision mandates the recall of awitness by the Court as it uses the expression 'shall’ summon and examine orrecall and reexamine any such person if his evidence appears to it to beessential to the just decision of the case. Essentiality of the evidence of theperson who is to be examined coupled with the need for the just decision ofthe case constitute the touchstone which must guide the decision of the Court.The first part of the statutory provision is discretionary while the latter part isobligatory. Power to summon witness is couched in the widest possible termsand calls for no limitation, either with regard to the stage at which it can beexercised or the manner of its exercise. Power of the Court is not constrained ( 7 ) 3 cri apln 3913.24by the closure of evidence. Therefore, it is amply clear from the abovediscussion that the broad powers u/S. 311 are to be governed by therequirement of justice. The power must be exercised wherever the court findsthat any evidence is essential for the just decision of the case. The statutoryprovision goes to emphasise that the court is not a hapless bystander in thederailment of justice. Quite to the contrary, the court has a vital role todischarge in ensuring that the cause of discovering truth as an aid in therealization of justice is manifest.9.Per contra, the learned APP supported the impugned order andcanvassed that the previous counsel of the accused thoroughly cross-examinedthe Victim-P.W. 1 and merely the Applicant-Accused engaged another counselcannot be a good and substantial ground for recalling the witness, so also,lacuna which has been left by the Accused cannot be permitted to fill up byrecalling the witness. 10.The learned APP further canvassed that after cross-examination ofthe victim-PW1, the Applicant-Accused changed the counsel, he filed anapplication (Exh. 19) on the ground that his previous counsel inadvertentlyhas not conducted the cross-examination properly. No suggestions and denialhave been brought on record. Therefore, the Applicant-Accused is seekingrecalling of P.W.1-Victim to fill up the lacuna. Merely the accused engaging ( 8 ) 3 cri apln 3913.24another counsel is not a sufficient ground to recall the witness under Sec. 311of Cri. P. C. Therefore, prayed for dismissal of the application.11.In support of these submissions, the learned APP placed relianceon the case of AG V/s. Shiv Kumar Yadav & Anr.; 2015 Cri.L.J. 4640, whereinthe Hon'ble Supreme Court in paragraph No. 15 held as under:“15. The above observations cannot be read as laying down any inflexible ruleto routinely permit a recall on the ground that cross-examination was notproper for reasons attributable to a counsel. While advancement of justiceremains the prime object of law, it cannot be understood that recall can beallowed for the asking or reasons related to mere convenience. It has normallyto be presumed that the counsel conducting a case is competent particularlywhen a counsel is appointed by choice of a litigant. Taken to its logical end,the principle that a retrial must follow on every change of a counsel, can haveserious consequences on conduct of trials and the criminal justice system.Witnesses cannot be expected to face the hardship of appearing in courtrepeatedly, particularly in sensitive cases such as the present one. It can resultin undue hardship for victims, especially so, of heinous crimes, if they arerequired to repeatedly appear in court to face cross-examination.”12.In the case in hand, it prima facie appears that, on 15.07.2024the evidence of the Victim-P.W.1 was recorded, but just to kill the time or toavoid the cross-examination, initially, the counsel for the Accused filed Exh.12 application of adjournment, but when the trial Court orally declined toadjourned the matter because, the Victim-P.W.1 minor attended the Court bytraveling 70 kms and as per the provisions of Section 33 (5) of the POCSO Actthe minor-victim cannot be repeatedly called in the Court for evidence.Thereafter, the counsel for the Applicant/Accused thoroughly conducted cross