Rajasthan High Court - Jodhpur
Pancharam vs State Of Rajasthan on 31 May, 2019
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2376/2019
Pancharam S/o Peera Ram, Aged About 27 Years, By Caste
Lohar, R/o Village Chandrak Khedapa, Dist. Jodhpur.
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Nishant Bora
For Respondent(s) : Ms. Rajlaxmi Singh Choudhary PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order 30/05/2019 The instant criminal misc. petition under Section 482 Cr.P.C.
has been filed by the petitioner against the order dated 11.04.2019 passed by the learned Special Judge, POCSO Act Cases, Jodhpur, in Sessions Case No.50/2018 whereby the trial Court allowed the application under Section 311 Cr.P.C. for recalling the witness during the course of the trial.
Counsel for the petitioner submits that the certificate issued by the Gov. Higher Secondary School has already been marked by PW-12 Manoranjan Gaur and during the course of examination, prosecutrix PW-3 has also stated that her date of birth is 05.05.1997. There is no discrepancy between the certificate and the date of birth mentioned by the prosecutrix and at this belated stage, the application under Section 311 Cr.P.C has been filed for summoning the witness, therefore there is no question of recalling (Downloaded on 05/06/2021 at 06:41:45 AM) (2 of 5) [CRLMP-2376/2019] of witness and the order passed by the trial court may be quashed and set aside.
Per contra, learned Public Prosecutor opposed the prayer made by the petitioner, however, he does not dispute the above factual position.
I have considered the arguments advanced before me and perused the documents on record. The school certificate issued by the Gov. Higher Secondary School has already been marked by PW-12 Manoranjan Gaur and the prosecutrix PW-3 has also mentioned in her statement that her date of birth is 05.05.1997.
When the document has already been exhibited and the Principal has already been examined the another Secondary School certificate in which also same date of birth has been mentioned.
Therefore, there is no useful purpose in recalling the witness again.
Hon'ble Supreme Court in the case of Rajaram Prasad Yadav vs. State of Bihar & Anr. reported in AIR 2013 SC 3081 has laid down following principles while dealing with application under Section 311 Cr.P.C:-
"23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, (Downloaded on 05/06/2021 at 06:41:45 AM) (3 of 5) [CRLMP-2376/2019] inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C.
should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no 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 (Downloaded on 05/06/2021 at 06:41:45 AM) (4 of 5) [CRLMP-2376/2019] any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."
Thus, it is a well-settled principle of law that if the trial court is of the opinion that recording of evidence of a particular witness or recalling the witness for further examination is essential for just decision of the case, it has wide discretion to conduct such (Downloaded on 05/06/2021 at 06:41:45 AM) (5 of 5) [CRLMP-2376/2019] exercise. However, in view of the the observations made by Hon'ble Supreme Court at points No. (e), (f), (i), (j) and (k), it is clear that the trial court has committed an error in exercising the jurisdiction under Section 311 Cr.P.C.
In view of above, the misc. petition is allowed. The order passed by the trial court dated 11.04.2019 is set aside. The stay is also disposed of.
(MANOJ KUMAR GARG),J 125-Anshul/-
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