PRADESH) v. (BY SHRI SANTOSH YADAV - DEPUTY GOVERNMENT ADVOCATE )

ORDER This petition under Section 482 of Cr.P.C is moved by the applicant Ramjan @ Ramjani Khan being aggrieved by the order dated 16.09.2022, passed by the Additional Sessions Judge, Berasia, District Bhopal in S.T.No.2/2021 (State of M.P. Vs. Ramjan @ Ramjani Khan) under Sections 376 and 506 part-II of IPC, whereby the application under Section 311 of Cr.P.C moved by the applicant/accused for recalling the prosecutrix (PW-1) was rejected by the trial Court.

Learned counsel for the parties are heard. 2

On a perusal of the impugned order, it is revealed that an application under Section 311 of the Cr.P.C was moved on behalf of the accused for recalling prosecutrix (PW-1) for further cross-examination on the ground that some questions about seizure of clothes could not be put to her. Therefore, she be recalled for further cross-examination on the point. The aforesaid application was rejected by the learned trial Court vide impugned order dated

16.09.2022. Aggrieved by the impugned order, applicant has filed this petition under Section 482 of the Cr.P.C.

Learned counsel for the applicant has submitted that learned trial Court has dismissed his application without applying of judicial mind on the grounds that lengthy cross-examination of prosecutrix (PW-1) has already been done on behalf of the applicant/accused. Hence, learned trial Court has dismissed the application.

Learned counsel for the applicant has further submitted that prosecutrix (PW-1) is material witness only questions regarding the seizure of the clothes had to be put. Therefore, learned trial Court was not justified to reject the application and not granting permission to recall her for further cross- examination on the point of seizure of her clothes related with the offence. Therefore, it is submitted that in the interest of justice that prosecutrix (PW-1) be re-summoned for further cross-examination on the facts mentioned herein above. Hence, he has prayed for quashment of the impugned order.

Learned counsel for the applicant/accused has submitted that impugned order be set aside and trial Court be directed to recall the prosecutrix (PW-1) for further cross-examination.

To buttress argument, learned counsel for the applicant has relied on 3 the order dated 27.10.2015, passed in Criminal Revision No.1237/2015 (Jaidev Vs. State of M.P.) No.1237/2015 by a Coordinate Bench of this Court and order dated 13.12.2021, passed in M.Cr.C.No.49105/2021 (Akhilesh Vishwakarma Vs. State of M.P.) and order dated 26.07.2022, passed in M.Cr.C.No.34741/2022 (Ashraf Vs. State of M.P.).

On the other hand, learned Deputy Government Advocate for the respondent/State has opposed the prayer made by learned counsel for the applicant. It is submitted that defence cannot be permitted to fill up the lacuna left in the cross-examination of the witness by recalling the witness for further cross-examination on a particular point. It is also submitted by learned counsel for the State that applicant/accused has not been successful to show as to why he be permitted to fill up the lacuna. Therefore, he has prayed for dismissal of the petition.

I have carefully considered the rival submissions made by learned counsel for the parties and have gone through the impugned order and material available on record.

As far as the order dated 27.10.2015 passed in Cr.R.No.1237/2015 is concerned that has no application in the facts of the present case as in that case accused were facing charges for commission of offence under Sections 420, 468 and 471 of IPC and they were not cross-examined on some material aspect. As far as order dated 13.12.2021, passed in M.Cr.C.49105/2021 is concerned, that was passed in light of the facts of the case and same has no application in the facts of the present case. In order dated 26.07.2022 passed in M.Cr.C.No.34741/2022, opportunity for further cross-examination was granted as in that case a different date of birth of the prosecutrix has surfaced. Thus, the facts of the above none of case was identical to the facts of the present case. 4

The nature and scope of the power exercised by the Court under Section 311 of Cr.P.C. was elaborately considered in the case of Raja Ram Prasad Vs. State of Bihar and another, 2013(14) SCC 461 and it was held that the power under Section 311 Cr.P.C. 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. There is no doubt in the legal position that Court has to bear in mind the essentiality of evidence for just decision of the case while deciding the application under Section 311 of Cr.P.C. as held by the Hon'ble Apex Court in catena of judgment and also the duration of a case cannot displace the specific requirements of the just decision after taking all the necessary material evidence on record. In the case of Soneram Rathore Vs. State of M.P., reported in 2015(2) MPLJ (Cri) 68, it has been held that in a case where application for recalling of prosecution witness had been filed on the ground that earlier counsel has not cross-examined witness properly and had not put some material questions cannot be ground to recall the witnesses already examined. Such application cannot be allowed for mere asking reasons and for reasons related to mere convenience. The Hon'™ble Supreme Court in case of State (NCT of Delhi) Vs. Shiv Kumar Yadav and Another, reported in 2016(3) MPLJ (Cri.) SC 271 has held that discretion given to Court for recalling of witness has to be exercised judiciously to prevent failure of justice and not arbitrarily. Mere observation that recall was necessary for ensuring fair trial is not enough unless there are tangible reasons to show how fair trial suffered without 5 recall.

On a perusal of the deposition sheet of the prosecutrix about her evidence recorded in the trial Court, it is apparent that prosecutrix was subjected to lengthy cross examination and almost all questions which were material have already been put to her. It is settled position of law that help of Section 311 of Cr.P.C cannot be given to accused to fill up the loop holes. Mere submission that questions could not be put about seizure of the clothes in an effective manner cannot be a ground to recall a witness as powers conferred under Section 311 of Cr.P.C can be invoked only in order to meet the ends of justice for strong and valid reasons, with great occasion of circumspection.

An application under Section 311 of Cr.P.C cannot be allowed to fill up the lacuna of prosecution or defence case. Unfair advantage cannot be given to any of the parties and no one can permitted to call the witnesses for further cross-examination without valid and strong reasons as to why his/her recalling is necessary for further cross-examination that too of a prosecutrix in case under Section 376 of IPC who has already been examined and cross-examined fully.

It is settled that an opportunity of fair trial has to be given to the accused but it should also be kept in mind that the interest of the victim and society at large should not get prejudiced. It is not the case of the applicant that the counsel who had cross-examined the prosecutrix at length was not competent. In such circumstances, no apparent fault is visible in the impugned order passed by the trial Court.

It is needless to say that the power conferred under Section 482 of the Cr.P.C has to be exercised sparingly only when there is apparent error or 6 gross injustice would be caused in the view taken by the sub ordinate Court. In the case on hand, a fair opportunity was granted to the accused and prosecutrix was cross-examined at length by his counsel. Now, no opportunity can be given to the accused to meet out the loop holes in evidence by way of Section 311 of Cr.P.C which may cause prejudice to either of the parties.

In view of the above discussion, this Court does not find error in the impugned order and is not inclined to interfere with it. Accordingly, the application under Section 482 of Cr.P.C being devoid of merit is dismissed. L.R. LALIT SINGH RANA 11:15:58 +05'30' (DINESH KUMAR PALIWAL) JUDGE