Madhya Pradesh High Court
Ravi vs The State Of Madhya Pradesh on 30 July, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:19879
1 CRR-5900-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL REVISION No. 1923 of 2025
RAVI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vikas Yadav- Advocate for the petitioner.
Shri Jayesh Yadav- Govt. Advocate for the State.
Shri Sanjay Chouhania- Advocate for the Objector.
CRIMINAL REVISION No. 5900 of 2024
RAVI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vikas Yadav- Advocate for the petitioner.
Shri Hemant Sharma- Govt. Advocate for the State.
Shri Sanjay Chouhania- Advocate for the Objector.
(Criminal Revision No.1923/2025 heard on 17.07.2025)
&
(Criminal Revision No.5900/2024 heard on 25.07.2025)
(Delivered on 30.07.2025)
ORDER
In both criminal revisions the issue to be decided have similarity and arises out of the order passed in Special Case No.14/2023 by the Special Judge, POCSO Act, 2012, Indore. Accordingly both the revision petitions are being decided analogously.
2. IA No.18874/2024 is preferred under section 5 of the Limitation Act, 1963 for condonation of delay of 56 days in filing the Criminal Revision No.5900/2024.
3. Considering the reasons stated in the application, IA No.18874/2025 is Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 30-07-2025 20:11:10 NEUTRAL CITATION NO. 2025:MPHC-IND:19879 2 CRR-5900-2024 allowed and the delay caused in filing the revision petition is hereby condoned.
4. Criminal Revision No.5900/2024 is preferred challenging the order dated 28.06.2024 in SC No.14/2023 passed by Special Judge, POCSO Act,2012 Indore whereby application Annexure-P/1 preferred under section 311 of the of the Code of Criminal Procedure,1973 for recalling and further cross examination of victim (PW-1) and her mother (PW-2) has been rejected.
5. Criminal Revision No.1923/2025 is preferred challenging the order dated 28.03.2025 in SC No.14/2023 passed by Special Judge, POCSO Act,2012 Indore whereby application Annexure-P/2 preferred on behalf of the revision petitioner/ accused for voice spectrography of PW-2 has been rejected.
6. Facts of the case in brief are that revision petitioner/accused is facing trial under sections 354(D), 376(3), 450, 506, 509 of the IPC and section 3/4 of the POCSO Act, 2012 and section 3(2)(v) of the SC and ST (POA) Act,1989 for committing penetration sexual assault with child (PW-1) below the age of 16 years on 15.09.2022 regarding which a crime no.579/2022 was registered at Police Station- Gandhinagar, District, Indore Urban. The statement of PW-1 was recorded on 13.06.2023 and statement of her mother was started to be recorded on 03.08.2023 as PW-2 but date of completion of the statement of PW-2 is not mentioned but order sheet dated 26.06.2024 discloses that total prosecution evidence completed on 28.04.2024. After completion of total prosecution evidence an application under section 311 of the of the Code of Criminal Procedure,1973 (Annexure-P/1) was preferred for permission for recalling and re-examination of Child (PW-1) and her mother (PW-2) on the ground that PW-2 has admitted in her cross-examination that there was a conversation with appellant/accused. It was further stated that she threatened the appellant/accused in false implication but the recording was not available with the concerned advocate and accordingly PW-2 could not be cross-examined effectively and PW-1 has to be re- examined.
Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 30-07-2025 20:11:10NEUTRAL CITATION NO. 2025:MPHC-IND:19879 3 CRR-5900-2024
7. The trial court has recorded the findings that PW-2 has been cross-examined on that point and defense has sufficient opportunity in this regard and witnesses have been extensively cross-examined. Accordingly victim PW-1 and her mother PW-2 cannot be called repeatedly.
8. Thereafter, an application i.e. Annexure-P/2 in CRR No.1923/2025 was preferred on behalf of the revision petitioner/ accused for voice spectrography of PW-2 regarding the conversation between PW-2 and wife of the appellant/accused on 19.08.2024, the transcribed of which is annexed as Annexure-P/3. The application was filed on 17.10.2024 and the trial court has rejected the application vide order dated 28.03.2025 and order dated 28.03.2025 has been challenged through Criminal Revision No.1923/2025.
9. Criminal Revision No.5900/2024 is preferred on the ground that mother of the victim (PW-2) has not been cross-examined regarding the calls. The trial court has re-opened the case for recording the prosecution evidence of Nayab Tehsildar and Executive Magistrate Tappa Khakanar Buranpur to prove the cast certificate of prosecutrix without giving opportunity to oppose the reopening of the prosecution case for evidence but dismissed the application filed by the applicant/accused and did not provide proper opportunity to defend him despite the fact that call recording was not available at the time of cross examination of PW-1 and PW-2. The trial court has passed the order mechanically without examining the statement of PW-1 and PW-2.
10. Criminal Revision No.1923/2025 is preferred on the ground that trial court has dismissed the application without considering the fact that after the statement of PW-1 and PW-2 the said phone call was made by the PW-2 to the DW-1. The trial court dismissed the application under section 311 of the of the Code of Criminal Procedure,1973 on the ground that accused can examine the defense witness to prove the phone calls. The trial court gave opportunity to the prosecution but did not provide full opportunity to the defense.
Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 30-07-2025 20:11:10NEUTRAL CITATION NO. 2025:MPHC-IND:19879 4 CRR-5900-2024
11. Heard.
12. Learned counsel for the Objector as well as counsel for the State opposed both the criminal revisions.
13. The guidelines and governing principles for exercising powers under section 311 of the Code of Criminal Procedure,1973 or section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to summon, recall or re-examine any person as witness has been summarized in the case of Rajaram Prasad Yadav Vs. State of Bihar, AIR 2013 SC 3081 (para 23), the Hon'ble Supreme Court has laid down following guidelines and governing principles for exercising powers u/s 311 CrPC to summon, recall or re- examine any person as witness :
(i) Whether the Court is right in thinking that the new evidence is needed by it?
Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
(ii) The exercise of the widest discretionary power under Section 311, CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
(iii) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
(iv) The exercise of power under Section 311, CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
(v) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
(vi) The wide discretionary power should be exercised judiciously and not arbitrarily.
(vii) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 30-07-2025 20:11:10NEUTRAL CITATION NO. 2025:MPHC-IND:19879 5 CRR-5900-2024
(viii) The object of Section 311, CrPC simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
(ix) The Court arrive at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
(x) Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
(xi) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
(xii) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
(xiii) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
(xiv) The power under Section 311, CrPC 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."
14. The matter is under POSCO Act,2012 and section 33(5) of the POCSO Act,2012 states that the Special Judge shall ensure that child is not being called repeatedly to testify in the court.
Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 30-07-2025 20:11:10NEUTRAL CITATION NO. 2025:MPHC-IND:19879 6 CRR-5900-2024
15. The Apex Court in the case of Madhab Chandra Pradhan & Others Vs. State of Odisha 2014 Supreme(SC) 916 has held that The legislative intent behind this provision is clear. It is to ensure that the child who has suffered a traumatic experience of sexual assault is not called time and again to testify about the same. Accordingly in the present case the question which falls for consideration is whether in the exercise of power under section 311 of the Code of Criminal Procedure, 1973 the special court ought to have called the child/victim and her mother for re-examination of the witnesses, keeping in mind the provisions of sections 33(5) of the POCSO Act, 2012. The paragraph-6 of Madhab Chandra Pradhan (Supra) is reproduced below:-
"6. The principles which would guide the exercise of a Court's power under Section 311 of the Cr.P.C were succinctly summed up by this Court in State (NCT of Delhi) v. Shiv Kumar Yadav (2016) 2 SCC 402. It was laid down by this Court that first, the plea for recall of a witness under Section 311 must be bona fide and genuine. Secondly, applications for recall of a witness under Section 311 should not be allowed as a matter of course and the discretion given to the Court must be exercised judiciously, not arbitrarily."
16. The transcript of the call dated 19.08.2025 (Annexure-P/3) stated to be between PW-2 and wife of the appellant is in the nature of opposing the bail application of the appellant/accused. There is no conversation regarding the incident dated 15.09.2022. Accordingly no illegality is found in the order dated 28.06.2024 which have been challenged through Criminal Revision No.5900/2024.
17. Further provisions under section 233 of the Code of Criminal Procedure, 1973 relates to the defense of the appellant, which is being reproduced below:-
"233. Entering upon defence.--(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 30-07-2025 20:11:10 NEUTRAL CITATION NO. 2025:MPHC-IND:19879 7 CRR-5900-2024 be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."
18. The order of the trial court in rejecting the prayer of voice spectrography also does not suffer illegality when examined from the angle that it is made for the purpose of vexation or delay or for defeating the ends of justice. Accordingly Criminal Revision No.1923/2023 also does not succeed and accordingly both the criminal revisions are dismissed.
(GAJENDRA SINGH) JUDGE ajit Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 30-07-2025 20:11:10