Chattisgarh High Court
Churavan Das Manikpuri vs State Of Chhattisgarh on 10 May, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 985 of 2021
Churavan Das Manikpuri S/o Ashok Das Manikpuri Aged
About 27 Years R/o Village Sankra, Police Station Berla,
District Bemetara Chhattisgarh --- Petitioner
Versus
State of Chhattisgarh through Station House Officer, Police
Station Berla, District Bemetara Chhattisgarh ---
Respondent
For the Petitioner : Mr. Anand Mohan Tiwari, Advocate. For the Respondent : Mr. Ajay Kumrani, Panel Lawyer Hon'ble Shri Justice Goutam Bhaduri Order on Board 10 .05.2022
1. The present petition has been filed against the order dated 17.02.2021 passed by the Addl. Sessions Judge, FTC of Special Court (POCSO Act), Bemetara whereby the application filed under section 311 CrPC to recall the prosecutrix was rejected.
2. Learned counsel for the petitioner would submit that the petitioner is brother of victim and the petitioner is facing prosecution under sections 354-A, 509, 376(2)(f)(j)(n) of IPC and section 5(l)/6 of The Protection of Children from Sexual Offences Act. He would submit that during the cross- examination of the victim/witness (P.W.6) it revealed that she used to write certain diary about daily happening and notings wherein it is recorded that the victim became upset with the happenings of quarrel in house and fighting and arguments which are matters of daily routine in the house. 2 He would submit that in the instant case it is stated by the petitioner that the accused brother along with other family members used to stop the victim-sister to meet her lover, therefore, as a counter blast, the false allegations have been levelled against him. He submits that the diary was being written by the girl recording all daily incidents. It is stated that the victim in her cross-examination has narrated the fact of writing daily diary of incidents, therefore, in order to explore the truth about happening of alleged sexual exploitation by brother, the further cross- examination of victim is essential for just decision. Hence, the trial Court was not justified in rejecting the application u/s 311 CrPC to recall the witness. He would submit that in case, if the prayer of petitioner to further cross examine the witness is not allowed, the petitioner may suffer irreparable loss as the POCSO Act prescribed stringent punishment which may extend to life , therefore, an opportunity to further cross examine the victim may be granted to the petitioner.
3. Per contra, learned State Counsel opposes the arguments and would submit that as per Section 33(5) of the POCSO Act, the victim should not be called repeatedly to testify in Court, therefore, under the circumstances, the impugned order was passed passed.
4. On the other hand, learned counsel for the petitioner submits that the right of an accused to recall the witness u/s 311 CrPC cannot always be denied only because there exists a right of prosecutrix u/s 33(5) of the POCSO Act. He refers to a recent decision of the Orissa High Court rendered in Crl. Rev.No. 439 of 2021 (Pidika Sambaru v. State of 3 Odisha) 2022 Livelaw (Ori) 21 and submits that it is mandatory for a court to recall witness for further examination if his/her evidence appears to be essential for just decision of the Court, therefore, there is no bar for a Court to recall the witness for further examination.
5. Perused the document annexed to the petition. A perusal of the documents would show that certain pages of diary so written by the victim have been enclosed. The victim (P.W.6) in her cross-examination at para 12 voluntarily deposed that lot of quarrels and fightings used to take place in the house and she never likes it and whatever being happened in the house every thing was written in the diary which is available with her father.
6. The Supreme Court in AG Versus Shiv Kumar Yadav 2015 STPL 7005 SC observed that fair trial is the objective and it is the duty of the court to ensure such fairness and the width of power u/s 311 CrPC is beyond any doubt. The court further observed that mere observation that recall was necessary for ensuring fair trial is not enough unless there are tangible reasons to show how the fair trial suffered without recall. The Supreme Court at paras 27, 28, 29 & 30 has observed as under :
"27. it is difficult to approve the view taken by the High Court. Undoubtedly, far trial is the objective and it is the duty of the court to ensure such fairness. Width of power under Section 311 CrPC is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial Court. The High Court rejected on merits 4 the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging the proceedings. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined.
28. It will also be pertinent to mention that power of judicial superintendence under Article 227 of the Constitution and under Section 482 CrPC has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate 5 court (Jasbir Singh Vs. State of Punjab (2006) 8 SCC 294, Prs. 10 to 14). A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial Court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial Court rejecting the stand of the accused has been affirmed. Thus the conclusion appears to be inconsistent with the reaons in the impugned order.
29. We may now sum up our reasons for disapproving the view of the High Court in the present case :
(i) The trial Court and the High Court held that the accused had appointed counsel of his choice.
He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross examination. They were under no handicap.
(ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at back of such counsel;
(iii) Expeditious trial in a heinous offence as is alleged in the present case is in the interest of justice;
(iv) The trial Court as well as the High Court rejected the reasons for recall of the witnesses;
(v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crim is not unduly harassed;
(vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial;
(vii) Mere change of counsel cannot be 6 ground to recall the witnesses;
(viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled;
(ix) The High Court has not rejected the reason given by the trial Court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall, i.e., denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings;
(x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted.
30. Accordingly, we allow these appeals, set aside the impugned order passed by the High Court and dismiss the application for recall."
7. Further the Supreme Court in Himanshu Singh Sabharwal Vs. State of M.P. AIR 2008 SC 1943 has examined the necessity of fair trial. It has also discussed the scope and ambit of Section 165 of the Indian Evidence Act read with Section 311 of the Cr.P.C. The Supreme Court held that the courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. The Supreme Court also emphasized the fair trial which is to be granted which denotes that a fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and 7 atmosphere of judicial calm. Fair trial also means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. The Supreme Court at para 13, 14, 16 & 17 of the judgement observed as under:-
"13. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.
14. "Witnesses" as Benthem said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed 8 would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and the trial is not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the 'TADA Act') have taken note of the reluctance shown by witnesses to depose against dangerous criminals-terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies.
16. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the 9 witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
17. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e (i) giving a discretion to the Court to examine the witness at any stage and
(ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India (1991 Supp (1) SCC 271) this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the word such as, 'any Court' 'at any stage', or 'any enquiry or trial or 10 other proceedings' 'any person' and 'any such person' clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way.
However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - 'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth."
8. A perusal of the record would show that at para 12 of the cross-examination, the victim has deposed as under:
;g lgh gS fd] eq>s esjs ekrk&firk vkSj vfHk;qDr pqjkou us jktk ls ckr djus ls euk fd;k Fkk vkSj mlls nwj jgus dks cksyrs FksA ;g lgh gS fd] blh ckr dks ysdj vfHk;qDr pqjkou esjs lkFk ekjihV Hkh djrk FkkA ;g lgh gS fd] eSa 'kq: ls gh vius ?kj esa ugha jguk pkgrh FkhA Lor% dgk fd esjs ?kj esa cgqr yM+kbZ&>xM+k gksrk Fkk] tks eq>s ilan ugha gS] eq>s 'kkar okrkoj.k ilan gSA vc lk{kh dgrh gS fd eSa vius lkFk gksus okyh fdlh Hkh ckr dks ysdj ,d dkWih esa fy[krh Fkh vkSj eSus ml dkWih esa vius ?kj ds yM+kbZ&>xM+s ds ckjs esa Hkh fy[kk Fkk] tks esjs ikik 11 ds ikl gksxhA
9. Thereafter along-with the petition, copy of hand writing documents purported to be diary notings written by the victim is placed on record. In the like nature of facts situation of the case, the Apex Court has prescribed guarded principles to exercise the power u/s 311 CrPC. So in the facts and circumstances of the present case, in order to ensure the fair trial , it would be appropriate to give a chance to the petitioner to further cross examine the victim.
10. In view of the above position of law and foregoing discussion, the order passed by the learned trial Court is set aside and the application filed by the petitioner u/s 311 CrPC is allowed. It is further stated that the trial is already fixed for evidence of defence witness on 11.05.2022. The trial Court may be informed to give a further date so that the further cross examination of Witness (P.W.6) is carried out and thereafter the defence evidence shall be recorded to complete the trial.
11.Consequently, this petition is allowed with the above direction/ observation.
Sd/-
GOUTAM BHADURI JUDGE Rao