Rajasthan High Court - Jodhpur
Mukesh Kumar vs State Of Rajasthan on 13 November, 2019
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3275/2018
Mukesh Kumar S/o Padmaram, Aged About 27 Years, B/c Suthar,
R/o Katarda
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Vimla Spouse/o Shankerram Patel, Ktada
----Respondents
For Petitioner(s) : Mr. Rakesh Kalla
Mr. Vijay Choudhary
For Respondent(s) : Mr. Mukhtiyar Khan, P.P.
Mr. S.K. Dadhich
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order 13/11/2019 The instant criminal misc. Petition under Section 482 of Code of Criminal Procedure has been filed by the Petitioner against the order dated 20.08.2018 passed by the learned Additional Sessions Judge (Women Atrocities) Jodhpur Metropolitan in Criminal Case No. 67/2017 whereby, the application filed by the petitioner under Section 311 Cr.P.C. has been rejected.
Brief facts of the case are that on 22.07.2015, the complainant gave a written report to the effect that about one and half year ago, the accused came to her home when she was alone and took some photographs on the basis of which the accused blackmailed her and committed rape with her. After marriage also, the accused petitioner forced her to establish sexual relationship with him and also demanded a sum of Rs. 2 lacs by blackmailing (Downloaded on 15/11/2019 at 08:34:39 PM) (2 of 6) [CRLMP-3275/2018] the complainant. The police registered FIR under Section 376, 384 IPC and Section 67 of IT Act.
On completion of investigation, the police filed chargesheet against the petitioner for offence under Section 376(2)(n) and 384 IPC. Learned Additional Additional Chief Judicial Magistrate No.5, Jodhpur Metropolitan took cognizance and referred the matter to the court of Sessions where, the charges have been framed under Section 376(2)(n), 385 IPC by the learned Addl. Sessions Judge (Women Atrocities) Jodhpur Metropolitan.
After framing of the charges, the complainant respondent no.2 examined as PW/1 on 23.01.2018, thereafter, an application under Section 311 Cr.P.C. was filed by the petitioner for cross- examination by the lawyer of the accused which came to be rejected vide order dated 20.08.2018.
Learned counsel for the petitioner submits that earlier cross- examination was done but inadvertently, some important questions could not be asked to the complainant therefore, for just decision of the case, the complainant should be recalled for cross- examination, however, the trial court without assigning any cogent, rejected the application filed by the petitioner under Section 311 Cr.P.C. Learned counsel for the petitioner placed reliance on judgment in the case of Rajaram Prasad Yadav Vs. State of Bihar reported in AIR 2013 SC 3081, Vipin Vs. State of Uttarakhand reported in 2018 Cr.L.J 150 and Manju Devi Vs. State of Rajasthan & Ors reported in AIR 2019 SC 1976.
Per contra, learned counsel for the respondent no.2 submits that the complainant has already been cross-examined as PW/1 by the counsel for the accused and thereafter, the cross- examination was closed on 23.01.2018. After change of lawyer, an (Downloaded on 15/11/2019 at 08:34:39 PM) (3 of 6) [CRLMP-3275/2018] application was filed by the petitioner on 16.05.2018 under Section 311 Cr.P.C. for again cross-examining the complainant which has rightly been rejected by the trial court vide order dated 20.08.2018 and therefore, the misc petition may be dismissed.
I have perused the impugned order and heard rival contention of the parties.
It is not disputed that detailed cross-examination of the prosecutrix has already been done by the counsel for the accused and same was closed 23.01.2018. Thereafter, on change of lawyer of accused, an application under Section 311 Cr.P.C. was filed by the petitioner for again cross-examining the complainant. In the opinion of this Court, change of lawyer cannot be a valid ground for again cross-examining the prosecutrix in this case. It is also informed that now only last witness has to be examined before the trial court and all other prosecution witnesses have been examined before the trial court.
Hon'ble Supreme Court in the case of Rajaram Prasad Yadav vs. State of Bihar & Anr. reported in AIR 2013 SC 3081 has laid down following principles while dealing with application under Section 311 Cr.P.C:-
"23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
a) 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?(Downloaded on 15/11/2019 at 08:34:39 PM)
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b) The exercise of the widest discretionary power under Section 311 Cr.P.C. 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.
c) 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.
d) The exercise of power under Section 311 Cr.P.C.
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.
e) 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.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) 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.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives 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.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no (Downloaded on 15/11/2019 at 08:34:39 PM) (5 of 6) [CRLMP-3275/2018] 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.
k) 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.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) 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.
n) 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."
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(6 of 6) [CRLMP-3275/2018] In the cricumstances of the case, in view of the the observations made by Hon'ble Supreme Court at points No. (e),
(f), (i), (j) and (k), it is clear that the trial court has not committed any error in refusing to exercise the jurisdiction under Section 311 Cr.P.C. Hence, this criminal misc. petition being bereft of merit, is hereby dismissed. The stay petition is also dismissed.
(MANOJ KUMAR GARG),J 253-BJSH/-
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