Karnataka High Court
Mr. Venu vs State Of Karnataka on 29 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 8324 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 8324 OF 2022
BETWEEN:
MR. VENU,
AGED ABOUT 19 YEARS,
S/O GOVINDAPPA,
RESIDING AT BENGANUR VILLAGE,
BANGARPET TALUK,
KOLAR DISTRICT - 563 114.
...PETITIONER
(BY SRI. SUNIL KUMAR H, ADVOCATE)
AND:
STATE OF KARNATAKA BY
KAMASAMUDRAM POLICE STATION,
REPRESENTED BY SPP.,
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001.
...RESPONDENT
Digitally signed
by PADMAVATHI
BK
Location: HIGH (BY SRI K S ABHIJITH, HCGP)
COURT OF
KARNATAKA
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO A.
SET ASIDE THE ORDER PASSED BY THE COURT OF
ADDITIONAL DISTRICT AND SESSIONS JUDGE FTSC-I (POCSO)
AT KOLAR IN SPECIAL C POCSO NO.36/2022 DATED
02.08.2022. B. DIRECT THE COURT OF ADDITIONAL DISTRICT
AND SESSIONS JUDGE FTSC-I (POCSO) AT KOLAR TO ALLOW
THE APPLICATION FILED BY THE PETITIONER UNDER SEC.311
OF CR.P.C.
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CRL.P No. 8324 of 2022
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an order dated 02.08.2022, by which, the application filed under Section 311 of the Cr.P.C. by accused No.4 in particular has been turned down by the learned Sessions Judge on the score that the petitioner has also adopted the cross-examination made by accused Nos.1, 2 and 3.
2. Heard Sri. Sunil Kumar H., learned counsel appearing for the petitioner and Sri. K.S. Abhijith, learned HCGP appearing for the respondent.
3. Brief facts that leads the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:
Accused Nos.1 to 4 are alleged to have indulged in certain acts which would become offences punishable under Sections 363, 376DA, 376 and 34 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, "POCSO Act").-3- CRL.P No. 8324 of 2022
3.1. The issue that drives the petitioner to this Court is not with regard to the merit of the matter. While the trial was on, accused Nos.1, 2 and 3 cross-examine the witnesses including the victim. The cross-examination of accused Nos.1 to 3 was adopted by accused No.4, who appeared through video conferencing and later on the learned counsel, who was absent on that day, realising the fact that the adoption was incorrect, sought examination of the victim by filing an application under Section 311 of the Cr.P.C. The learned Sessions Judge, by his order dated 02.08.2022, declines to accept the application on the ground that Section 33(5) of the POCSO Act prohibits the victim to be recalled for cross-examination repeatedly. It is this order that is called in question in the subject petition.
4. Learned counsel, Sri. Sunil Kumar H., representing accused No.4 would contend that accused Nos.1, 2 and 3 have cross-examined the victim on a particular day and accused No.4 had appeared through video conferencing as he was in custody and has adopted the cross-examination conducted by accused Nos.1, 2 and 3. On that date, the learned Advocate of -4- CRL.P No. 8324 of 2022 accused No.4 was not present though was not knowing the consequences of adoption, accused No.4 has accepted the cross-examination whatever is made by accused Nos.1, 2 and
3. Learned counsel would submit that accused Nos.1 and 2 in particular are alleged to have indulged in such acts and not accused No.4. Therefore, in the teeth of the heinous offence, one opportunity should be granted to the petitioner to cross-
examine, as the case would become, a case where there is no cross-examination at all of the victim by a particular accused.
He would place reliance upon the following judgments:
(1) PIDIKA SAMBARU VS STATE OF ORISSA -
Crl.rev. No.490/2021;
(2) VARSHA GARG VS STATE OF MADHYA PRADESH, SUPREME COURT OF INDIA - 2022 SCC OnLine SC 986;
(3) V.N. PATIL VS K.NIRANJAN KUMAR AND ORS -
2021 3 SCC 661;
(4) S. GANESHAN VS STATE REPRESENTED BY INSPECTOR OF POLICE, MADRAS HIGH COURT
- Crl.O.P.No.4131/2022 and Crl.M.P.No.2060/2022.
5. Learned HCGP would refute the submissions to contend that the victim is 14 years old, though the allegations against the petitioner are grave in nature, the victim should not -5- CRL.P No. 8324 of 2022 be repeatedly called for cross-examination in terms of Section 33(5) of the POCSO Act and would seek dismissal of the petition.
6. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.
7. The afore-narrated facts are not in dispute. The allegations against the petitioner are the ones punishable under the afore-quoted provisions, which would entail imprisonment of 20 years, in the least, in the event, the trial would end in conviction of the petitioner including others. The cross-
examination of the victim took place on 23.06.2022. On the said date, the learned counsel for accused Nos.1, 2 and 3 was present and the learned counsel for accused No.4 was absent.
Accused No.4 appeared through video conferencing, as he was in judicial custody, accepts or adopts the cross-examination made by accused Nos.1, 2 and 3. The cross-examination of accused No.4, the petitioner herein is as follows:
-6- CRL.P No. 8324 of 2022"¥Ánà ¸ÀªÁ®Ä:
1£Éà DgÉÆæ ¥ÀgÀ ªÀQîgÀÄ 2 ªÀÄvÀÄÛ 3£Éà DgÉÆævÀgÀ ¥ÀgÀ ªÀQîgÀÄ ªÀiÁrgÀĪÀ ¥Án ¸ÀªÁ®£ÀÄß C¼ÀªÀr¹PÉƼÀÄîªÀÅzÁV ºÉýgÀÄvÁÛgÉ.
4£Éà DgÉÆæ ¥ÀgÀ ªÀQîgÀÄ UÉÊgÀÄ ºÁdgÀÄjgÀÄvÁÛgÉ. 4£Éà DgÉÆæAiÀÄÄ «.¹. ªÀÄÄSÁAvÀgÀ 2 ªÀÄvÀÄÛ 3£Éà DgÉÆævÀgÀ ¥ÀgÀ ªÀQîgÀÄ ªÀiÁrgÀĪÀ ¥Án ¸ÀªÁ®£ÀÄß C¼ÀªÀr¹PÉƼÀÄîªÀÅzÁV ºÉýgÀÄvÁÛgÉ."
(emphasis supplied)
8. The afore-quoted cross-examination of accused No.4 would indicate that the learned Advocate was not present and accused No.4 has accepted whatever cross-examination of accused Nos.2 and 3 are conducted. Therefore, it is an admitted fact that the petitioner has not given an opportunity to cross-examine the victim, independently as the offence against him was independent. Though an amalgum of all the offences.
9. It is now germane to notice the judgments relied on by the petitioner. The High Court of Orissa in the case of PIDIKA SAMBARU V. STATE OF ORISSA while considering Section 33(5) of the POCSO Act and offence therein has held as follows:
"6. It is also contended that the intention behind enacting Section 33 (5) of the POCSO is only to ensure that in a genuine case the child victim is -7- CRL.P No. 8324 of 2022 not harassed, but cannot be used as a shield by the trial Court to deprive the accused of a right of proper cross examination and therefore a right of fair trial.
7. It is mandatory for a Court to recall witness for further cross-examination if his evidence appears to be essential for just decision of the case. There is no bar for a court to recall a witness for further cross-examination. In Godrej Pacific Tech. Ltd. -v- Computer Joint India Ltd.2, which has rightly by referring to Section 311 of the Code, the Hon'ble Apex Court has held:
"The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary -8- CRL.P No. 8324 of 2022 for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts."
8. In Vimal Khanna vs. State3 the Court has held that denial of opportunity to cross examine the witnesses violates the Constitutional guarantee to an accused and vitiates the trial. Vimal Khanna (Supra) has been followed in Mohd. Gulzar v. The State (GNCTD)4, wherein after recording that the counsel for the accused was not present on three consecutive dates to cross examine the witness, the Court held that since the right of cross examination is a valuable right, the child's right under Section 33 (5) of POCSO Act has to be balanced with the aforesaid rights of the accused and thus permitted one more opportunity to the accused to cross examine the alleged victim. In B. C. Deva @ Dyava vs. State Of Karnataka the Court5 was clearly of the view that the power to recall a witness at the instance of either party to ensurejustice is done is greater than the provisions set out in Section 33 POCSO Act. The provisions of Section 33 laid down a general principle which must guide the trial Court and is similar to Section 309 Cr.P.C, being in the nature of laws to ensure speedy trial. However, by virtue of Sections 4 and 5 of Cr.P.C, Section 311 Cr.P.C shall prevail as no specific procedure is provided under POCSO Act for recall of a witness. Section 42A of POCSO Act clarifies that the Act is not in derogation of any other Law.
9. In that view of the aforesaid, this Court is of the view that cross-examination of the -9- CRL.P No. 8324 of 2022 prosecution witnesses being an essential right of the accused, it is evident that non-cross-examination of the said witnesses will put the petitioner to prejudice. In such circumstances, it is not unjust to afford an opportunity to the petitioner to cross- examine P.Ws.1 to 3 by recalling them."
(emphasis supplied)
10. The High Court of Madras in the case of S. GANESHAN V. STATE, has held as follows:
"6. Mr.A.Gokulakrishnan, learned Additional Public Prosecutor would vehemently opposes stating that the Trial Court had rightly found that change of counsel cannot be a reason for recalling the witnesses and had rightly dismissed the same. The Trial Court had also relied on the Judgment of the Honb-le Apex Court in the case of Vinod Kumar Vs State of Punjab reported in 2015 (3) SCC 220, and dismissed the application. However, he would fairly concede that the victim is aged about 21 years now.
7. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor and perused the materials available on record.
8. Though the present petition has been filed to recall the PW1 to PW12, the petitioner now restricts his claim in respect of recalling PW2, PW7 and PW8 alone. PW2 is the victim, PW7 and PW8 are the Doctors. It is admitted that as on today, PW2 is aged about 21 years. It is useful to refer Paragraphs 5 to 9 of the Judgment of the Orissa High Court in Crl.Rev.No.490 of 2021 dated 04.03.2022, which is extracted hereunder:~ "5. Secion 311 of the Code provides:
"Power to summon material witness, or examine person present. Any Court may, at any stage of any enquiry, trial or other proceeding under this Code, summon any
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person as a witness, or examine nay person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case."
On the other hand, Section 33(5) of the POCSO Act reads as under:
"Procedure and powers of Special Court:
(5) The Special Court shall ensure that the child is not called repeatedly to testify in the Court."
6. It is also contended that the intention behind enacting Section 33(5) of the POCSO is only to ensure that in a genuine case the child victim is not harassed, but cannot be used as a shield by the trial Court to deprive the accused of a right of proper cross examination and therefore a right of fair trial.
7. It is mandatory for a Court to recall witness for further cross-examination if his evidence appears to be essential for just decision of the case. There is no bar for a Court to recall a witness for further cross examination. In Godrej Pacific Tech. Ltd. Vs Computer Joint India Ltd, which has rightly by referring to Section 311 of the Code, the Hon-ble Apex Court has held:
"The section is manifestly in two parts.
Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall
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and reexamine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts."
8. In Vimal Khanna Vs State the Court has held that denial of opportunity to cross examine the witnesses violates the Constitutional guarantee to an accused and vitiates the trial. Vimal Khanna (Supra) has been followed in Mohd. Gulzar Vs The State (GNCTD), wherein after recording that the counsel for the accused was not present on three consecutive dates to cross examine the witness, the Court held that since the right of cross examination is a valuable right, the child-s right under Section 33(5) of the POCSO Act has to be balanced with the aforesaid rights of the accused and thus permitted one more opportunity to the accused to cross examine the alleged victim. In B.C.Deva @ Dyava Vs State of Karnataka, the Court was clearly of the view
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CRL.P No. 8324 of 2022that the power to recall a witness at the instance of either party to ensure justice is done is greater than the provisions set out in Section 33 POCSO Act. The provisions of Section 33 laid down a general principle which must guide the trial Court and is similar to Section 309 Cr.P.C, being in the nature of laws to ensure speedy trial. However, by virtue of Sections 4 and 5 of Cr.P.C, Section 311 Cr.P.C shall prevail as no specific procedure is provided under POCSO Act for recall of a witness. Section 42A of POCSO Act clarifies that the Act is not in derogation of any other law.
9. In that view of the aforesaid, this Court is of the view that cross~examination of the prosecution witnesses being an essential right of the accused, it is evident that non~cross examination of the said witnesses will put the petitioner to prejudice. In such circumstances, it is not unjust to afford an opportunity to the petitioner to cross~examine PWs.1 to 3 by recalling them."
9. In this case, the petitioner has been charged for the offences under Section 366 of IPC, Section 5(l) read with Section 6 of the POCSO Act and under Section 9 of the Prohibition of Child Marriage Act, 2006. Section 29 of the POCSO Act raises presumption against the accused. It is also useful to refer Section 29 of the POCSO Act, which reads as under:~ "29. Presumption as to certain offences: Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
This Clause provides for presumption as to certain offences. It provides that where a person is prosecuted for violating any of the provisions under Clauses 3,5,7 and 9 of the proposed legislation, and where the
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CRL.P No. 8324 of 2022victim is a child below the age of sixteen years, the Special Court shall presume that such person has committed the offence, unless the contrary is proved (Notes on clauses)."
10. As per Section 29 of the POCSO Act, unless the contrary is proved, the Special Court shall presume that the accused has committed or abetted or attempted to commit the offence as the case may be, unless, the contrary is proved.
11. In view of the above, a heavy burden is caused on the petitioner to rebut the presumption which operates against him. As stated above, PW2, PW7 & PW8 are crucial witnesses. If the witnesses are not cross- examined, the evidence stands unrebutted and it would amount to a case of no defence resulting in grave prejudice to the petitioner. However, in this case, the victim is now aged about 21 years and she will not fall within the definition of "child" so as to Section 33(5) of the POCSO Act, 2012.
12. In view of the peculiar facts and circumstances of the instant case, this Court is of the opinion that, a chance should be given to the petitioner to recall PW2, PW7 and PW8 who have not been cross~examined so far. Therefore, the impugned order in respect of PW2, PW7 and PW8 stands set aside on condition that the petitioner shall deposit a sum of Rs.6,000/~ before the Trial Court on the next hearing date and file an application to recall the witnesses PW2, PW7 and PW8. The Trial Judge shall recall and fix date for their appearance and on such date, the petitioner shall cross~examine the witnesses without any delay. If the petitioner fails to cross~examine the witnesses on the date of their appearance, the petitioner shall loose the chance of further cross~examining the witnesses. Each of the witnesses shall be paid Rs.2,000/~ on the date of
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CRL.P No. 8324 of 2022their appearance before the Trial Court. This Criminal Original Petition stands allowed with the above observations. Consequently, connected Criminal Miscellaneous Petition is closed."
(emphasis supplied)
11. These are the cases where the accused, who was facing charges of offences punishable under the POCSO Act and the Courts have considered and have generated a balance between the right of the accused to get for cross-examination under Section 311 of the Cr.P.C. and the prohibition as obtaining under Section 33(5) of the POCSO Act. Above all, the Apex Court in its latest judgment in the case of VARSHA GARG V. STATE OF MADHYA PRADESH1 has considered the purport of an application under Section 311 of the Cr.P.C. and has held as follows:
" 31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court "may":
(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and
(ii) Recall and re-examine any person who has already been examined.1
2022 SCC OnLine SC 986
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CRL.P No. 8324 of 202232. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court "shall" summon and examine or recall and re-examine any such person "if his evidence appears to the Court to be essential to the just decision of the case". Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.
33. The first part of the statutory provision which uses the expression "may" postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression "shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case". Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.
34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed:
"16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision -- either discretionary or mandatory -- depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice."
35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to
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CRL.P No. 8324 of 2022the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the "evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means." In that context the Court observed:
"18 ...Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties."
36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P.19, State of W.B. v. Tulsidas Mundhra20, Jamatraj Kewalji Govani v. State of Maharashtra21, Masalti v. State of U.P.22, Rajeswar Prosad Misra v. State of W.B.23 and R.B. Mithani v. State of Maharashtra24, the Court held:
"27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."
37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be
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CRL.P No. 8324 of 2022governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.
38. Section 91 CrPC empowers inter alia any Court to issue summons to a person in whose possession or power a document or thing is believed to be, where it considers the production of the said document or thing necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the CrPC.
39. Section 91 forms part of Chapter VII of CrPC which is titled "Processes to Compel the Production of Things". Chapter XVI of the CrPC titled "Commencement of Proceedings before Magistrates" includes Section 207 which provides for the supply to the accused of a copy of the police report and other documents in any case where the proceeding has been instituted on a police report.25 Both operate in distinct spheres.
40. In the present case, the application of the prosecution for the production of the decoding registers is relatable to the provisions of Section 91 CrPC. The decoding registers are sought to be produced through the representatives of the cellular companies in whose custody or possession they are found. The decoding registers are a relevant piece of evidence to establish the co-relationship between the location of the accused and the cell phone tower. The reasons which weighed with the High Court and the Trial Court in dismissing the application are extraneous to the power which is conferred under Section 91 on the one hand and Section 311 on the other. The summons to produce a document or other thing under Section 91 can be issued where the Court finds that the production of the document or thing "is necessary or desirable for the purpose of any investigation, trial or other proceeding"
under the CrPC. As already noted earlier, the power under Section 311 to summon a witness is conditioned by the requirement that the evidence of the person who is sought to
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be summoned appears to the Court to be essential to the just decision of the case.
41. PWs 33, 41, 43 and 48, who were the nodal officers of Idea, Airtel, Reliance and Vodafone have already been examined. During the examination of PW-41, the nodal officer of Airtel, the witness specifically deposed during the course of examination that:
"2. Call detail of mobile number XXXXXXXXXX, which has 134 pages is Exhibit P-104, I sent the same detail of the call to the police. Each page of the same has seal of Bharti Airtel on the same. Call detail contains date and time wise detail of call and short message services made/sent and received by the customer. Additionally, location of the mobile number is available in code number along with the time of the call or message for which call detail is provided. Location of the call made by the mobile number in certain time has been shown with codes, I cannot state name of the location today by seeing the code. Location can be stated after decoding the same. We have coding chart for location, by seeing the same location can be started. I don't have aforesaid chart along with me. Aforesaid chart is available in the office."
(emphasis supplied)
42. The relevance of the decoding register clearly emerges from the above statement of PW-41. Hence, the effort of the prosecution to produce the decoding register which is a crucial and vital piece of evidence ought not to have been obstructed. In terms of the provisions of Section 311, the summoning of the witness for the purpose of producing the decoding register was essential for the just decision of the case.
43. Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution's case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311.
44. In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat26, which was more recently reiterated in
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CRL.P No. 8324 of 2022Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd.27, the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence. It noted that:
"28. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.
(emphasis supplied)
45. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad (supra), the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. In Rajendra Prasad (supra), the Court had held that:
"8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be
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magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."
(emphasis supplied)
46. In the present case, the importance of the decoding registers was raised in the examination of PW-41. Accordingly, the decoding registers merely being additional documents required to be able to appreciate the existing evidence in form of the call details which are already on record but use codes to signify the location of accused, a crucial detail, which can be decoded only through the decoding registers, the right of the accused to a fair trial is not prejudiced. The production of the decoding registers fits into the requirement of being relevant material which was not brought on record due to inadvertence.
47. Finally, we also briefly deal with the objection of the respondents regarding the stage at which the application under Section 311 was filed. The respondents have placed reliance on Swapan Kumar (supra), a two judge Bench decision of this Court, to argue that the application should not be allowed as it has been made at a belated stage. The Court in Swapan Kumar (supra) observed:
"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 wide 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.
12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and
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should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision."
48. In the present appeal, the argument that the application was filed after the closure of the evidence of the prosecution is manifestly erroneous. As already noted above, the closure of the evidence of the prosecution took place after the application for the production of the decoding register and for summoning of the witness under Section 311 was dismissed. Though the dismissal of the application and the closure of the prosecution evidence both took place on 13 November 2021, the application by the prosecution had been filed on 15 March 2021 nearly eight months earlier. As a matter of fact, another witness for the prosecution, Rajesh Kumar Singh, was also released after examination and cross-examination on the same day as recorded in the order dated 13 November 2021 of the trial court.
49. The Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. This Court in Zahira Habibulla H. Sheikh (supra) while dealing with the prayers for adducing additional evidence under Section 391 CrPC at the appellate stage, along with a prayer for examination of witnesses under Section 311 CrPC explained the role of the court, in the following terms:
"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
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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."
(emphasis supplied)
50. Further, in Zahira Habibullah Sheikh (5) (supra), the Court reiterated the extent of powers under Section 311 and held that:
"27. The object underlying Section 311 of the Code 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 section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 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 whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."
(emphasis supplied)
51. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni (supra) stressed upon the wide ambit
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CRL.P No. 8324 of 2022of Section 311 which allows the power to be exercised at any stage and held that:
"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 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.
(Emphasis supplied)
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CRL.P No. 8324 of 202212. In the light of the aforesaid orders and the admitted fact of the petitioner has not been given an opportunity to cross-examine the witness i.e., victim, I deem it appropriate to grant one opportunity to the petitioner to cross-examine the victim strictly in consonance with law i.e., the questions will have to put through the learned Sessions Judge and the answer shall be elucidated only through the learned Sessions Judge.
The learned Sessions Judge would see that the witness would not be intimidated in the garb of examination.
13. For the aforesaid reasons, the following ORDER I. Criminal Petition is allowed.
II. The order dated 02.08.2022 passed by the Court of Additional District and Sessions Judge - FTSC-1 (POCSO), Kolar in Special C POCSO No.36/2022 stands quashed.
III. The learned Sessions Judge shall fix a date for the victim's appearance and the cross-
examination of the victim shall be concluded
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CRL.P No. 8324 of 2022on the said date in consonance with law.
Accused No.4 shall not be entitled to any opportunity of the kind that is sought in the case at hand in future.
Sd/-
JUDGE SJK List No.: 1 Sl No.: 20