Madhya Pradesh High Court
Suo Moto In The Matter Of The State Of M.P. vs Complainant/Prosecutrix on 5 May, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) Gwalior, Dated : 05-05-2022 Shri C.P.Singh, learned counsel for the applicant/State.
Smt. Kalpana Parmar, learned counsel for the prosecutrix and her father.
Shri Sunil Dubey, learned counsel for Santosh.
Shri Prakhar Dhengula, learned counsel for Sonu Parihar.
Shri Vibhor Kumar Sahu, learned counsel for Ajmer.
Shri J.P.Mishra, Shri Jitendra Sharma, Shri Rajiv Sharma, Shri Rajiv Budholiya, Shri Yash Sharma and Shri Gaurav Mishra, learned Counsel for Advocates who have been issued notices.
Yesterday, this Court had requested Shri J.P.Mishra, Shri Jitendra Sharma, Shri Rajiv Sharma, Shri Rajiv Budholiya, Shri Yash Sharma and Shri Gaurav Mishra to assist the Court on the question as to whether the lawful authority of High Court can be permitted to be misused for getting rid of a child by seeking permission for medical termination of pregnancy, which otherwise would have been an offence or not, as well as whether re-examination of witnesses can be directed or not?
2. In the present case, the father of the prosecutrix had filed a writ petition claiming that prosecutrix is minor and she was subjected to rape and after hearing the father of the prosecutrix as well as the State Counsel and after obtaining the medical opinion of the Medical Board, 2 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) this Court had directed for medical termination of pregnancy. Whereas in her Court evidence in the trial, the prosecutrix has taken U turn and claimed that she is major and nothing had happened with her.
3. Today, it is submitted by Shri J.P. Mishra, Shri Jitendra Sharma, Shri Rajiv Sharma, Shri Rajiv Budholiya, Shri Yash Sharma & Shri Gaurav Mishra that since they are also appearing for the Advocates, therefore, they be released from their task of assisting the Court as the interest of their clients may be conflicting. It is further submitted that in case if an order for re-examination of prosecutrix is passed, then this Court will have to give a finding that the evidence given by prosecutrix was not voluntary and since the prosecutrix has alleged against the Advocates in an enquiry conducted by the Superintendent of Police, Datia, therefore, directly or indirectly there may be some findings with regard to involvements of the Advocates and as the case of the Advocates is yet to be heard, therefore, this question may be deferred.
4. Shri Anil Mishra and Shri D.R. Sharma Advocates submitted that in the present case the question is as to whether the re-
examination of prosecutrix can be directed in the light of her writ petition for medical termination of pregnancy which was filed on the averments that she is not only minor but is victim of rape. So far as the allegations made by the prosecutrix and her father in the enquiry 3 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) conducted by Superintendent of Police, Datia is concerned, that may not be foundation for directing re-examination because there is ample material on record to show that a writ petition was filed claiming that the prosecutrix was minor and pregnant & was subjected to rape and even as per medical report, she was found to be pregnant carrying the pregnancy of three months.
5. Heard the learned counsel for the parties on the question of deferment.
6. Whether the prosecutrix has voluntarily resiled from her statement or she has resiled at the instance of third person is yet to be decided and for deciding the question of re-examination of prosecutrix, no finding will be required in this regard.
7. So far as the apprehension expressed by Counsel for Advocates is concerned, this Court is of the considered opinion that it appears to be misconceived. This Court has issued contempt notice to the prosecutrix and her father for making a false statement in Writ Petition No.5723/2021. The question of re-examination of the prosecutrix and her father and brother has arisen only in the light of the subsequent stand taken by them. But one thing is clear that in the writ petition the father of the prosecutrix had claimed her to be minor which was accepted by the State Counsel on the basis of the school record and she was pregnant as per the report of medical Board and her 4 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) pregnancy was terminated in compliance of order passed by this Court in W.P. No.5723/2021. Whereas in the Court evidence she has taken a U turn. Further from the record of the Trial Court, it is clear that the order of termination of pregnancy passed by this Court is available, but she has denied termination of her pregnancy also. However as per DNA report, the prosecutrix is the biological mother of fetus.
Although DNA profile of Sonu has been found in vaginal slide, vaginal swab, pubic hairs of the prosecutrix, but it has also been found that none of the accused are biological father of fetus.
8. Therefore, it is made clear that the question as to whether the prosecutrix, her father and brother should be re-examined or not, shall be decided purely on the basis of averments made in W.P. No.5723/2021, the DNA test report as well as the evidence given by them before the Trial Court. This Court will not touch the question as to whether the statement made by the prosecutrix and her father before the Superintendent of Police, Datia by making allegations against the Advocates is correct or not. The question whether the prosecutrix and her father as well as brother had turned hostile on their own or under the pressure of any other person shall be considered and decided separately after considering their replies.
9. Heard on the question of re-examination of witnesses.
10. It is submitted by Shri Anil Mishra and Shri D.R. Sharma, 5 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) Amicus, that Section 311 of Cr.P.C. gives power to any Court to 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, if it is found to be essential to the just decision of the case. Thus, it is submitted that the second part of Section 311 of Cr.P.C. imposes an obligation on the Court to summon and examine or recall and re-examine any such person, if his evidence appears to be essential to the just decision of the case. To buttress his contentions, Shri Anil Mishra relied upon the judgment passed by the Supreme Court in the case of Jamatraj Kewalji Govani vs. The State of Maharashtra reported in AIR 1968 SC 178. He has also relied upon the judgment passed by the Andhra Pradesh High Court in the case of Palacharla Rama Rao Vs. State of A.P. reported in 2002 Cri.L.J. 4189 and the order passed by the coordinate Bench of this Court in the case of Pahalwan Singh Vs. State of M.P. and another dated 14/3/2022 passed in M.Cr.C. No.19849/2021 (Jabalpur).
11. It is further submitted that on perusal of the evidence of a witness, where the Court is satisfied that recall or re-examination is essential for just decision of the case, then the witness should be recalled. It is further submitted that the object of Section 311 of Cr.P.C. is to avoid failure of justice on account of any mistake on the part of the parties in bringing the valuable evidence on record.
6THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) Whether new evidence is necessary or not, would depend upon the facts of the case. Principle of fair trial informs and energizes many areas of law. The majesty of law can be upheld by due administration of justice. Fair trial involves human rights and fairness to all and denial of fair trial results in injustice to the accused as to the victim as well as to the society. It is submitted that in the present case, the father of the prosecutrix had filed Writ Petition No.5723/2021 seeking permission for medical termination of pregnancy of the prosecutrix on the ground that not only she is minor, but she is subjected to rape.
After considering the submissions made by the counsel for the petitioner as well as the reply submitted by the counsel for the State with regard to the minority of the prosecutrix as well as after considering the medical report given by the Medical Board, this Court had directed for medical termination of pregnancy of the prosecutrix.
Now the prosecutrix has taken a u-turn and it is clear from her evidence that she has claimed that she had never conceived and she never underwent abortion. Even the father of the prosecutrix has taken a u-turn in the Court and has claimed that he has never filed any writ petition before this Court for medical termination of pregnancy and the minor prosecutrix was never aborted. However, it is clear from the DNA test report that the prosecutrix is the biological mother of the fetus, which was taken out after her abortion. It is further submitted 7 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) that while filing writ petition, the father of the prosecutrix had claimed that she has conceived on account of rape committed by the accused Sonu Parihar, whereas as per the DNA test report, although the DNA profile of Sonu Parihar was found in the vaginal slide, vaginal swab, pubic hairs and penty of the prosecutrix, but at the same time it has been opined that the accused Sonu Parihar is not the biological father of the fetus, whereas it has been specifically pointed out that the prosecutrix is the biological mother of the fetus. Thus, it appears that the prosecutrix must have conceived from some other person and in order to obtain the order of medical termination of pregnancy, she made a false allegation before this Court that she had conceived on account of rape committed by Sonu Parihar. It is submitted that no one should be allowed to speak false before the Court, specifically when they have obtained an order of medical termination of pregnancy from the High Court.
12. The counsel for Ajmer submitted that the Supreme Court in the case of Rajaram Prasad Yadav Vs. State of Bihar and another reported in (2013) 14 SCC 461 has laid down certain parameters for exercising power under Section 311 of Cr.P.C. and the facts and circumstances of this case are duly covered by those parameters.
13. It is submitted by Shri Prakhar Dhengula, counsel for Sonu Parihar that since the prosecutrix as well as her father have 8 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) specifically denied regarding filing of the writ petition as well as undergoing the medical termination of pregnancy, therefore, no useful purpose would be served by directing for re-examination of the witnesses. It is further submitted that the power under Section 311 of Cr.P.C. can be exercised in a proceeding arising out of the Code. Since the present proceedings have been initiated for contempt of Court, therefore, this Court should not exercise suo moto powers under Section 482 of Cr.P.C.
14. Heard learned counsel for the parties.
15. This Court by order dated 28/3/2022, after considering the return filed by the prosecutrix and her father in which they had claimed that they have wrongly deposed before the Trial Court, observed as under:-
"Accordingly, this Court is of the considered opinion that it is a fit case where this Court can exercise its power under Section 482 of CrPC also in order to do complete justice."
15.1 Notice was issued to the accused to show-cause as to why this Court should not direct the Trial Court to re-examine the prosecutrix and witnesses, as they have specifically taken a stand before this Court that the evidence given by them before the Trial Court is not the correct one.
16. Furthermore, this Court in order to do complete justice, can also 9 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) exercise its suo moto powers under Section 482 of Cr.P.C. The evidence which was given by the prosecutrix as well as her father and her brother before the Trial Court has a direct nexus with the present contempt proceedings. In the contempt proceedings, when the prosecutrix and her father had taken a specific stand that they have not deposed correctly before the Trial Court, then this Court would be failing in its duty in case if it does not suo moto exercises its powers under Section 482 of Cr.P.C. for re-examination of the prosecutrix, her father and her brother. The suo moto exercise of powers under the facts and circumstances of the case is closely interconnected with the subject matter of the contempt proceedings.
17. At this stage, it is submitted by the counsel for the accused that although this Court has a jurisdiction to suo moto exercise its powers under Section 482 of Cr.P.C., but instead of exercising the said power in the present case, this Court should direct for separate registration of an application under Section 482 of Cr.P.C.
18. However, the counsel for the accused Sonu Parihar was unable to point out any difference in forum. The power under Section 482 of Cr.P.C. is available with the High Court only, therefore, if a separate petition under Section 482 of Cr.P.C. is directed to be registered, still then the power would stand vested in this Court only and the forum would not change. Therefore, the objection taken by the counsel for 10 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) the accused Sonu Parihar is not only misconceived, but it is purely technical in nature and the technicality of law should not be given precedence over justice, specifically when no prejudice will be caused to any of the parties.
19. So far as the question of power under Section 311 of Cr.P.C. is concerned, the Supreme Court in the case of Rajaram Prasad Yadav (supra) has held as under:-
14. A conspicuous reading of Section 311 CrPC would show that widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a prefix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the court was only in relation to such evidence that appears to the court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 CrPC and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-
examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 CrPC. It is, therefore, imperative that the invocation of Section 311 CrPC and its application in a particular case can be ordered by the court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available 11 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) to any court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined is concerned, the court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.
17.1. 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?
17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
17.3. 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.
17.4. 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.
17.5. 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.
17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.
12THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) 17.7. 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.
17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.
17.9. 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.
17.10. 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.
17.11. 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.
17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
17.13. 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.
17.14. 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 13 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) 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.
19.1 The Supreme Court in the case of Zahira Habibullah Sheikh (5) and another Vs. State of Gujarat and others reported in (2006) 3 SCC 374 has held as under:-
34. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the law of evidence.
There is, however, an overriding and, perhaps, unifying principle. As Deane, J. put it:
"It is desirable that the requirement of fairness be separately identified since it transcends the context of more particularised legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law."
35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice--often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a 14 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
37. A criminal trial is a judicial examination of 15 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.
38. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an over hasty stage-managed, tailored and partisan trial.
39. 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.
40. "Witnesses" as Bentham 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 the 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 16 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle the 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 the State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed 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 the ultimate truth is presented before the court and justice triumphs and that the trial is not reduced to a mockery. Doubts are raised about the roles of investigating agencies. Consequences of defective investigation have been elaborated in Dhanaj Singh v. State of Punjab [(2004) 3 SCC 654 : 2004 SCC (Cri) 851 : JT (2004) 3 SC 380] . It was observed as follows: (SCC p. 657, paras 5-7) "5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
(See Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] )
6. In Paras Yadav v. State of Bihar [(1999) 2 SCC 126 : 1999 SCC (Cri) 104] it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way 17 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) of evaluating the evidence by the courts;
otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
7. As was observed in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085] if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-
enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh [(2003) 2 SCC 518 :
2003 SCC (Cri) 641] ."
41. 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 have 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 the court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation (sic repetition). We can only say this with regard to the criticism levelled against the State of Gujarat. 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 people with muscle power, money power or political power which has become the order of the day. If ultimately the 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 the courts 18 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) mere mock trials as are usually seen in movies.
19.2 The Supreme Court in the case of Zahira Habibulla H. Sheikh and another vs. State of Gujarat and others reported in (2004) 4 SCC 158 has held as under:-
42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance, if not more, as the interests of the individual accused. In this courts have a vital role to play.
43. 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. 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 the 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 19 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
44. 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 Mohanlal v. Union of India [1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595] this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, "any court", "at any stage", or "any enquiry or trial or 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.
45. It is not that in every case where the witness who had given evidence before court wants to change 20 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) his mind and is prepared to speak differently, that the court concerned should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case, accept it. It is not that the power is to be exercised in a routine manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The court can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in.
46. Ultimately, as noted above, ad nauseam the duty of the court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer on any party any right to examine, cross- examine and re-examine any witness. This is a power given to the court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in the case.
55. The courts, at the expense of repetition we may state, exist for doing justice to the persons who are affected. The trial/first appellate courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The court is not merely to act as a tape recorder 21 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself.
19.3 The Supreme Court in the case of V.N. Patil Vs. K. Niranjan Kumar and others reported in (2021) 3 SCC 661 has held as under:-
13. The scope of Section 311 CrPC which is relevant for the present purpose is reproduced hereunder:
"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."
14. The object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion".
15. The principles related to the exercise of the 22 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P. [Vijay Kumar v. State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240] : (SCC p. 141, para 17) "17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."
16. This principle has been further reiterated in Mannan Shaikh v. State of W.B. [Mannan Shaikh v. State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547] and thereafter in Ratanlal v. Prahlad Jat [Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 :
(2017) 3 SCC (Cri) 729] and Swapan Kumar Chatterjee v. CBI [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] . The relevant paragraphs of Swapan Kumar Chatterjee [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] are as under:
(Swapan Kumar Chatterjee case [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] , SCC p. 331, paras 10-11) "10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not 23 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) summoned as a witness; or (iii) to recall and re-
examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.
11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law."
17. The aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice.
20. On one hand the prosecutrix has used the lawful authority of this Court to get rid of an unwanted child by alleging that she is minor and she was subjected to rape by the accused Sonu Parihar, At the time of hearing of Writ Petition No.5723/2021 filed by her father, the case diary was also called and the State counsel after verifying from the case diary, had also stated that the prosecutrix is minor. After obtaining the medical opinion from the Medical Board, this Court had 24 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) granted permission for medical termination of pregnancy. From the DNA test report, it is clear that the prosecutrix is the biological mother of the fetus.
21. Under these circumstances, this Court is of the considered opinion that the denial of prosecutrix and her father with regard to filing of writ petition for medical termination of pregnancy as well as abortion done in compliance of the order passed by this Court in Writ Petition No.5723/2021 coupled with the DNA test report of the fetus, according to which, the prosecutrix is the biological mother as well as the DNA test report that the DNA profile of the accused Sonu Parihar was found in the vaginal slide, vaginal swab, pubic hairs as well as penty of the prosecutrix coupled with the fact that the stand taken by prosecutrix and her father before the SP, Datia in an enquiry conducted by the said authority in compliance of orders passed by this Court, this Court is of the considered opinion that it is a fit case where re-examination of the prosecutrix, her father and her brother must be directed to do the complete justice.
22. Accordingly, in suo moto exercise of powers under Section 482 of Cr.P.C, the Trial Court is directed to re-examine the prosecutrix (PW-1), her father (PW-2) and her brother (PW-3). The Trial Court is directed to return the record of the case immediately after re-
examining the aforesaid three witnesses. The prosecutrix (PW-1), her 25 THE HIGH COURT OF MADHYA PRADESH CONC No. 415/2022 (SUO MOTO IN THE MATTER OF THE STATE OF M.P. Vs COMPLAINANT/PROSECUTRIX AND OTHERS) father (PW-2) and her brother (PW-3) are directed to appear before the Trial Court on 2nd June, 2022 for their re-examination. It is made clear that if the prosecutrix (PW-1), her father (PW-2) and her brother (PW-
3) fail to appear before the Trial Court on 2nd June, 2022, even then the Trial Court shall immediately send back the record of the case after recording the order-sheet on the said date.
23. It is made clear that the order for re-examination has been issued purely on the basis of averments made in Writ Petition No.5723/2021 as well as the evidence given by the prosecutrix (PW-
1), her father (PW-2) and her brother (PW-3) and the DNA test report only. The statement made by the prosecutrix and her father before the SP, Datia is taken into consideration only to the extent that these witnesses have not deposed correctly before the Trial Court.
24. Whether these witnesses resiled from their statements voluntarily or at the behest of some third person, shall be considered independently after replies are filed.
25. List this case on 20/06/2022 for consideration of the contempt notice issued to the prosecutrix, her father as well as Advocates.
26. Office is directed to immediately return the record of the Trial Court alongwith copy of this order.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2022.05.06 17:18:43 +05'30'