The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.183 of 2023 Bapina @ Sambit Jena …. Petitioner Mr. T.K. Mishra, Advocate -versus- State of Odisha …. Opp. Party Mr. Rajesh Tripathy Addl. Standing Counsel CORAM: JUSTICE S.K. SAHOO Order No. ORDER 24.04.2023 01. This matter is taken up through Hybrid arrangement (video conferencing/physical mode). This revision petition has been filed by the petitioner Bapina @ Sambit Jena challenging the order dated 28.03.2023 passed by the learned Addl. Sessions Judge -cum- Special Court under POCSO Act, Cuttack in Special G.R. Case No.04 of 2018 (which has been wrongly typed as Special G.R. Case No.4 of 2028 in the impugned order) in rejecting the petition dated 20.03.2023 under section 311 Cr.P.C. filed by the petitioner to recall the victim (P.W.1) for further cross-examination on the ground that some questions have been left out to be put to the victim and for such purpose recalling of the victim is necessary in the interest of justice. // 2 // On perusal of the materials on record, it appears that the charges were framed against the petitioner for commission of offences under section 376 read with section 511 of the Indian Penal Code and section 8 of the POCSO Act on the accusation that the petitioner attempted to commit rape on the victim girl in the intervening night of 23/24.05.2016 in a field in village Jharkata, Cuttack. The victim was examined as P.W.1, cross-examined and discharged on 21.05.2018. Thereafter, on 20.03.2023 a petition was filed on behalf of the petitioner to recall the victim to put the following questions:- 1. Whether she has seen or knows the accused during occurrence, which dresses she had worn? 2. Whether her friend Malati was present and seen the occurrence or left the place? 3. Whether her mother stated the occurrence to her father? The learned trial Court rejected the petition for recall on the ground that the submission of the learned defence counsel that the matter has been amicably settled cannot be a ground to recall the victim particularly taking into account the nature and gravity of the accusation. It is further observed that the recall petition was filed four years and six months after the victim was examined on 21.05.2018 and the questions which were mentioned in the recall petition are unnecessary and in no way would be helpful for effective adjudication of the case. The learned
Facts
trial Court also took into account the provision under Sub- section (5) of section 33 of the POCSO Act which provides Page 2 of 7 // 3 // that the Special Court shall ensure that the child is not called repeatedly to testify in the Court.
Legal Reasoning
counsel for the respective parties, there is no dispute that Page 3 of 7 // 4 // the first part of section 311 Cr.P.C. gives purely discretionary authority to the criminal Court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the Court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. The power conferred under section 311 Cr.P.C. 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 witness 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. Recall of a witness already examined is not a matter of course and discretion given to Court in this regard has to be exercised judicially to prevent failure of justice. Reasons for exercising said power should be spelt out in order. Delay in filing application for recalling a witness is one of the important factors which has to be explained in the application. Page 4 of 7 // 5 // In the case of Mohanlal Shamji Soni -Vrs.- Union of India and Anr. reported in A.I.R. 1991 S.C. 1346, the Hon’ble Supreme Court observed as follows:- <The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair- play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case.= Since the offences under which charges are framed against the petitioner are not compoundable, the learned trial Court rightly rejected the contention of compromise between the parties as one of the grounds for recall. In the case of Rama Paswan and others -Vrs.- State of Jharkhand reported in (2007) 11 Supreme Court Cases 191, in a similar case, the Hon’ble Supreme Court held that section 376 I.P.C. is not compoundable in terms of section 320 of the Code and therefore, the trial Court and the High Court rightly rejected the prayer for recall of the victim. On perusal of the recall petition which was filed four years and six months after the victim (P.W.1) was Page 5 of 7 // 6 // examined on 21.05.2018, it appears that the reason for delay in filing such petition has not been explained in the petition. The questions as have been mentioned therein to be put to the victim are totally irrelevant in the context of the case. When the victim has deposed in clear terms against the petitioner and stated about the overt act committed by the petitioner against her, the 1st question that whether she had seen or knew the petitioner during occurrence is a totally irrelevant question. Similarly the 3rd question as to whether her mother stated about the occurrence to her father is no way helpful for the just decision of the case. Those questions are to be asked to the parents of the victim not to the victim. The 2nd question as to whether her friend Malati was present and seen the occurrence or left the place is also no way relevant, because according to the learned counsel for the petitioner, the victim has not stated about the presence of Malati at the time of occurrence and it is the father of the victim who is the informant of the case has mentioned about the same in the first information report. If the father has stated about the same, any confrontation in that respect is to be made to the father and not to the victim, in view of the language of section 145 of the Evidence Act. A Judge is not powerless when frivolous and vexatious petitions are filed. He should use his discretionary power and refuse to grant relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Page 6 of 7 // 7 // In view of the foregoing discussions, I find no infirmity or illegality in the impugned order. Accordingly, the revision petition being devoid of merits, stands dismissed. A copy of the order be communicated to the learned trial court forthwith. P Judge (S.K. Sahoo) Page 7 of 7
Arguments
Mr. Tusar Kumar Mishra, learned counsel appearing for the petitioner contended that it is the settled position of law that delay in filing the recall petition cannot be a ground to reject such petition and it is the duty of the Court to see while considering a petition under section 311 of Cr.P.C. whether the recall and re-examination of the person would be essential for just decision of the case. It is further argued that since some relevant questions could not be put to the victim, the recall petition was filed. He argued that merely because for putting such questions, the victim is required to attend the Court once more, the same cannot be a ground to reject the petition for recall and moreover, the matter has been amicably settled between the parties and therefore, the impugned order should be set aside and the petition for recall be allowed and the learned defence counsel appearing for the petitioner in the trial Court be permitted to put the questions to the victim as are mentioned in the recall petition under Annexure-4. Mr. Rajesh Tripathy, learned Additional Standing Counsel for the State, on the other hand, submitted that the learned trial Court has rightly rejected the petition for recall and the questions are irrelevant and by allowing such petition, it would further delay the trial and therefore, the revision petition should be dismissed. Adverting to the contentions raised by the learned