Gauhati High Court
Rakesh Ali vs The State Of Assam And Anr on 5 April, 2022
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
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GAHC010046922022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./98/2022
RAKESH ALI
S/O LATE GUL MOHAMMAD
VILL- KHANDAKAR PARA
P.S. AND DIST. BARPETA,
PIN-781309
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:SAHED ALI
S/O LATE SAIFUDDIN
R/O VILL- MAJDIA
P.S. SARTHEBARI
DIST. BARPETA
ASSAM
PIN-78130
Advocate for the Petitioner : MR. A R SIKDAR
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
05.04.2022 By this application filed under Sections 397,401 CrPC, read with Section 482 CrPC and Article 227 of the Constitution of India, the petitioner has challenged the impugned Page No.# 2/6 order dated 10.12.2021, passed in Sessions (Special) Case No. 05/2021, whereby the learned trial Court has rejected the prayer made by the petitioner to recall PW-1 and PW- 2 for cross-examination.
2. Heard the submissions of learned counsel for the petitioner, and also the learned Additional Public Prosecutor for the State respondent.
3. Present accused petitioner is facing trial in connection with the aforesaid case, pending before the learned Special Judge, POCSO, Nalbari. According to the petitioner, he was appearing before the Court regularly and on 24.02.2021, while the case was fixed for evidence, he along with engaged counsel was present before the Court, but as no witnesses turned up till 01:00 pm, the engaged counsel for the petitioner went to other Court to conduct cases and at 01:00 pm, the accused petitioner collected the next date from his engaged counsel and left for the home and he did not know about subsequent presence of witnesses, after he left the Court. Subsequently, he came to know that in absence of engaged counsel, the Court was pleased to examine PW-1 and PW-2 and their cross-examination was closed. On being aware of the fact, he filed a petition for recalling the witnesses, so that the evidence of PW-1 and PW-2 can be rebutted by way of cross-examination and same is necessary for just decision of the case. The learned trial Court rejected the prayer by the impugned order dated 10.12.2021, with the observation that the presence of accused was not dispensed with till arrival of the witnesses and learned defence counsel, when informed about the witnesses, he showed disinclination to cross-examine the witnesses, as he has already sent the accused. The Court examined the informant and the victim, under Section 309 CrPC, dispensing their cross-examination.
4. The learned trial Court in its order has also observed that there is no provision under the law to recall a witness, whose cross-examination has been dispensed with, under Section 309 CrPC, while particularly the victim is a minor and the Court is to ensure that to get the justice, the child does not have to go through the trauma of incident Page No.# 3/6 repeatedly.
5. Learned counsel for the petitioner has contended that cross-examination of aforesaid witnesses are necessary to find out the truth and for just decision of the case, otherwise, there will be serious prejudice to the case of the petitioner. It has been urged that the Court has the power to summon material witnesses under Section 311 CrPC, for just decision of the case. The order of the learned trial Court is stated to be bad in law, inasmuch, as the Court has closed the avenue of cross-examining the witnesses under Section 309 CrPC, whereas instead of doing so, the Court could have engaged Legal Aid Counsel to cross-examine the witness under Section 304 CrPC, and the same has virtually infringed the fundamental rights as enshrined under Article 39A of the Constitution of India and violative of the principles of natural justice.
6. Also heard the learned Additional Public Prosecutor, Mr M P Goswami, who has contended that because of irresponsible conduct of the accused as well as the engaged counsel, minor victim aged about 10 years should not be allowed to suffer to face the trial repeatedly.
7. Due consideration is given to the submissions made by the learned counsel for both the parties and the impugned orders.
8. The contention has been raised by the petitioner that the above two witnesses were examined after he left the Court, in absence of his engaged counsel. From the impugned order itself it reveals that the learned trial Court informed the engaged lawyer about the presence of witnesses, but the learned counsel showing disinclination, did not turn up to cross-examine the witnesses, for which the Court chose to examine the witnesses invoking the provision under Section 309 CrPC. Absence of accused at the time of recording evidence was also because of the engaged counsel, who allowed him to leave the Court at 01:00 pm, without leave of the Court. Because of the negligent conduct of the engaged counsel (which reveals from the impugned order), the learned trial Court recorded the statement of the witnesses, invoking Section 309 CrPC.
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9. So far as invoking 309 CrPC in the given circumstances, appears to be proper, as regards the examination of the witnesses.
10. Section 309 (2) CrPC provides that after taking cognizance of the offence or commencement of the trial, the learned trial Court may adjourn the hearing for reasons to be recorded, provided that, when the witnesses are in attendance, no adjournment and postponement shall be granted without examining them, except for special reasons to be recorded. The provision under Section 309 CrPC is exhaustive in nature and the learned trial Court can record the statement of witnesses, there being no any special ground, for adjournment.
11. But the observation of the learned trial Court that there is no any provision to recall any witnesses after the witnesses were examined under Section 309 CrPC, is not proper appreciation of law. Because the Section 311 CrPC can be invoked to summon any material witness at any stage of enquiry or trial, which reads as follows:-
"311. Power to summon material witness, or examine person present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
12. The Hon'ble Supreme Court in Mohanlal Shamji Soni -Vs- Union of India & Another; 1991 Suppl.(1) SCC 271, has explained about the scope and ambit of Section 311 that every Court has the power to summon, examine, recall and re-examine any witness or the person present. The provision in the two parts, first being discretionary and the second one being obligatory and such power is in the widest terms exercisable at any stage, so long as the Court is in seisin of the proceeding. The accused is entitled to fair and reasonable opportunity to rebut the evidence brought on record against him, pursuant to exercise of such power. It has been held that second part of the provision Page No.# 5/6 imposes an obligation upon the Court of recalling and re-examining any witness and only condition prescribed is that the evidence sought to be obtained must be essential to just decision of the case. Further it has been held that the criminal Court has ample power to summon any person or recall and re-examine any witness even if evidence of both sides is closed, as it incorporates the rules of natural justice. The accused is presumed to be innocent until he is proved guilty and the accused in all fairness should be given an opportunity to rebut the evidence to ensure fairness in the trial.
13. The finding of the learned trial Court that after invoking Section 309 CrPC, there is no provision to recall the witnesses is not the correct proposition of law. The power under Section 311 CrPC is wide enough, which can be invoked at any stage of the trial and even after closure of evidence, as has been held in Mohanlal (supra). Such interpretation of the Section 309 CrPC will run contrary to the provision of Section 311 CrPC as well as Article 13 of the Constitution of India.
14. In Gobindaraju -Vs- State of Karnataka; 2021 (3) Crl. L.J 98, it has been held that conviction without providing an opportunity to the accused to cross-examine the prosecution witness is nothing but the denial of a fair trial. The Section 33 (5) provides a mandate that the Special Court shall ensure that the child shall not be called repeatedly to testify in the Court and same has been provided only to complete the hearing of the victim expeditiously, but the Act nowhere provided that the Court should shut its eye to the attending facts and circumstances of a case, which may vary from case to case.
15. Turning to the present case at hand, we found that the accused was allowed to leave the Court by the engaged counsel and thereafter, in his absence, as he was not represented by the engaged counsel, two material witnesses, i.e., the informant and the victim have been examined by the learned Court and on the basis of which the conviction may entail. In the adversary criminal justice system, litigants always depend upon the engaged counsel and they may be unaware about the consequences, that may crop up for their absence and denial of cross-examination of material witnesses will be Page No.# 6/6 nothing, but denial of fair trial. Such cross-examination is also necessary for just decision of the case.
16. Considering all entirety of the matter as discussed above, impugned order dated 10.12.2021 is hereby quashed and set aside, with a direction to the learned trial Court to recall PW-1 and PW-2, with an opportunity to the petitioner to cross-examination of the witnesses, subject to payment of cost of Rs. 5,000/- to be deposited before the Court by the learned engaged counsel, on or before the next date so fixed (we are not aware of the next date so fixed).
17. The petition stands disposed of accordingly.
JUDGE Comparing Assistant