Punjab-Haryana High Court
Sonia vs State Of Haryana And Others on 28 May, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
Crl. Revision No. 3303 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Crl. Revision No. 3303 of 2013 (O&M)
Date of decision: 28.05.2014
Sonia ........ Petitioner
Versus
State of Haryana and others .......Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
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Present: Mr. Jai Vir Yadav, Advocate
for the petitioner
Ms Loveleen Dhaliwal Singla, Sr. DAG, Haryana
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J. (Oral)
The present petition has been directed against the order dated 07.09.2013, passed by the Additional Sessions Judge, Palwal, whereby the application filed by the prosecutrix for her re-examination after alternation in charge, has been dismissed by the trial Court.
Counsel for the petitioner contends that on 5.03.2013, charge under Section 376 of the Indian Penal Code (in short, 'IPC') and Section 9 of the Protection of Children from Sexual Offences Act, 2012 (in short, 'POCSO Act') was framed against accused Krishan and his co-accused Karambir was charged for committing offence punishable under Section 506 Bimbra Mohan Lal 2014.05.30 10:26 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 3303 of 2013 (O&M) 2 IPC. After examination of the prosecutrix as a witness during trial, the learned trial Court altered the charge and as a result, Karambir was also charged for committing offence punishable under Sections 376 IPC and charge framed against Krishan for offence punishable under Section 9 of POCSO Act was altered to Section 4 of the said Act. It is argued with vehemence that keeping in view the mandate of the provisions of Section 217 of the Code of Criminal Procedure (in short, 'Cr.P.C.'), the trial Court is obligated to recall or re-summon and examine with reference to such alteration or addition any witness who may have been examined unless the Court for recorded reasons finds that the prosecution or the accused desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice. According to Counsel, the learned trial Court dismissed the application filed by the prosecutrix with the observations that there is no necessity or relevance to re-examine the prosecutrix on the same point which is not in consonance with the spirit of Section 217 Cr.P.C.
Counsel for the respondent State of Haryana has nothing to submit to counter the submissions made by Counsel for the petitioner in view of the clear interpretation of Section 217 Cr.P.C.
The accused facing trial arrayed as respondents No. 2 and 3 in the present proceedings, did not appear in the Court to controvert the plea of the petitioner.
I have heard counsel for the parties and perused the case file. There is hardly any dispute between the parties with regard to factual position of the case that initially Krishan accused was charged for Bimbra Mohan Lal 2014.05.30 10:26 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 3303 of 2013 (O&M) 3 committing offence punishable under Sections 376 IPC and Section 9 of POSCO Act, whereas his co-accused Karambir was charged for offence punishable under Section 506 IPC only. Later, after examination of the prosecutrix as a witness, the charge was altered. As a consequence thereafter Krishan was charged for committing offence under Section 376 and Section 4 of POCSO Act and Karambir, co-accused was also charged for committing offence under Section 376 IPC. Section 217 Cr.P.C. provides for recall of a witness when charge altered. A relevant extract from Section 217 Cr.P.C. is quoted hereunder:-
217. Recall of witnesses when charge altered.
Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed-
(a) to recall or re- summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re- examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) xx xx xx xx"
Perusal of the impugned order would reveal that the trial Court dismissed the application filed by the prosecutrix without any such finding that request for re-examination of the witness is for the purpose of vexation or delay or for defeating the ends of justice. The reasons assigned by the trial Court in rejecting the prayer of the petitioner, cannot stand the test of judicial scrutiny and, therefore, the order passed by the trial court is liable to Bimbra Mohan Lal 2014.05.30 10:26 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 3303 of 2013 (O&M) 4 be set aside.
In view of what has been discussed hereinabove, the petition is allowed and the impugned order dated 07.09.2013 passed by the Additional Sessions Judge (I), Special Court (Crime Against Women) Palwal, is set aside with a direction to the trial Court to decide the application afresh in the light of provisions of Section 217 Cr.P.C.
(Rekha Mittal) Judge 28.05.2014 mohan Bimbra Mohan Lal 2014.05.30 10:26 I attest to the accuracy and integrity of this document Chandigarh