Andhra Pradesh High Court - Amravati
Sri Gude Venkateswara Rao vs The State Of Andhra Pradesh on 24 July, 2024
1
APHC010179572024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3396]
(Special Original Jurisdiction)
WEDNESDAY ,THE TWENTY FOURTH DAY OF JULY
TWO THOUSAND AND TWENTY FOUR
PRESENT
HONOURABLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA
CRIMINAL PETITION No.2841 of 2024
Between:
Sri Gude Venkateswara Rao and Others ...PETITIONER/ACCUSED(S)
AND
The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT
Counsel for the Petitioner/accused(S):
1. R SIVA SAI SWARUP
Counsel for the Respondent/complainant:
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
ORDER:
This Criminal Petition under Section 482 of the Code of Criminal Procedure (for short 'the Code') has been filed by the Petitioners/A.1 and A.2 seeking quashment of the Order dated 27.02.2024 passed in Crl.M.P.No.108 of 2024 in SC No.86 of 2020 on the file of the Court of Special Judge for Trial of Offences Under POCSO Act, Visakhapatnam, registered for the offences punishable under Sections 354-A and C, and Sections 7 and 11 of Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act"), against them.
2. The grievance of the Petitioners/A.1 and A.2 is that in SC No.86 of 2020, they have filed an application vide Crl.M.P.No.108 of 2024 under Section 313 Cr.P.C. seeking to recall P.W.3/Chittem Anusree (victim child) for further cross-examination on the ground 2 that some material aspects in her evidence could not be recorded in the earlier cross-examination. The Court below dismissed the said application observing as under:
This Court having considered the petition and counter averments and going through the record, observes that, PW3 was examined way back on 23.1.2024 and all most a month after the victim girl being examined, this application to recall is filed which also as put-forth by the prosecution, is silent as to the aspects on which the further cross examination is sought, where the victim child was extensively cross examined on the date of her giving evidence. That apart, the victim being a minor child, a Specific Provision is made under Section 33(5) of the Act, which categorically states that that "a child shall not be called repeatedly to testify in the Court". Which means it is the intent of the legislature to avoid stress and strain that will be caused to a child by calling him/her to testify in the Court about the trauma faced repeatedly, hence such a practice shall be discouraged, as such this Court opines that there are no grounds in the application worth considering to recall the victim child, and it would only put the girl to more trauma as calling her again to the Court to give evidence would only amplify her sufferance. Hence, this Court not only for the reason that the petition does not disclose any valid reason i.e., points on which the victim is sought to be recalled and cross examined, but also keeping in view the above referred specific provision, opines that viewed from any corner this petition deserves no consideration. Accordingly the petition is dismissed.
Aggrieved by the same, the present Criminal Petition has been filed.
3. Heard Sri R.Siva Sai Swarup, learned counsel for the Petitioners and learned Assistant Public Prosecutor for the respondent/State. Perused the material on record.
4. Learned counsel for the Petitioners would submit that the Petitioners filed a recall petition seeking to recall P.W.3/Victim Girl for 3 further cross-examination since some material aspects in her evidence could not be touched during her cross-examination and the said Petition was dismissed by the Court below on the ground that as per Section 33(5) of the POCSO Act, a Child cannot be called repeatedly to testify in the Court. Learned counsel further submits that charges for the Offences under Sections 354-A & C and Sections 11 of POCSO Act were framed against the Petitioners and that further cross- examination is very much essential to prove the innocence of the Petitioners. Learned counsel placed reliance on the decision in Pidika Sambaru v. State of Odisha and anr1.
5. Per contra, learned Assistant Public Prosecutor would submit that the Petition is silent as to the aspects on which recalling a witness is warranted. Further, the Petition is filed in a routine manner to recall a witness for further cross-examination, which cannot be encouraged for the offence under POCSO Act particularly, the witness being a minor Child.
8. A bare perusal of Section 482 makes it clear that the Code envisages that inherent powers of the High Court are not limited or affected so as to make orders as may be necessary; (i) to give effect to any order under the Code or, (ii) to prevent abuse of the process of any Court or, otherwise (iii) to secure ends of justice. A court while sitting in Section 482 jurisdiction is not functioning as a court of appeal or a court of revision. It must exercise its powers to do real and substantial justice, depending on the facts and circumstances of the case. These 1 . 2022 LiveLaw (ori) 21 4 powers must be invoked for compelling reasons of abuse of process of law or glaring injustice, which are against sound principles of criminal jurisprudence.
9. Specific circumstances warranting the invocation of the provision must be present. To identify these specific circumstances, it is essential to discuss some precedents. The decision rendered by the Hon'ble Apex Court in State of Haryana and others v. Bhajanlal and others2 is considered as the guiding torch in the application of Section 482. At paras 102 and 103, the circumstances are spelt out as follows;
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.2
AIR 1992 SC 604 5 (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
(emphasis supplied)
6. Considering the submissions made and on perusal of the material on record, this Court is of the considered view that this Criminal Petition deserves to be dismissed for the following grounds:
i) The Petitioner is facing trial for the Charges under Sections 354-A and C and Sections 7 and 11 of the POCSO Act.
ii) After one month of the examination of P.W.3/ victim girl, recall petition has been filed on the ground that P.W.3 has to be cross-
examined further to mark some material documents through her. The said Petition was opposed by the Prosecution in the Court below. 6
iii) Having considered the submissions of learned counsel for both sides, the Court below observed that the Petition is silent as to the aspect on which further cross-examination is required.
iv) It is also observed that P.W.3/ Child Witness was extensively cross examined coupled with these facts and in the light of Section 33(5) of POCSO Act, a Child cannot be called repeatedly to testify in the Court and on that score, the Crl.M.P.No.108/2024 was dismissed.
v) The decision in Pidikiti Sambaru (supra) as relied upon by learned counsel for the Petitioners is a case where the accused was in custody, P.Ws.1 to 3 were examined and the defence counsel failed to cross-examine the said witness, after release of the accused, he engaged another Advocate, filed recall petition and the said Petition was dismissed on the point that there is a bar under Section 33(5) of the POCSO Act. In that context, the Court held that the intention and object behind enacting Section 33(5) of the POCSO Act 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.
vi) In Mohd.Gulzar v. The State (GNCTD) 3 it was observed that 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 the Act has to be balanced with the aforesaid rights 3 . 2018(4) JCC 2291 7 of the accused and thus permitted one more opportunity to the accused to cross-examine the victim.
vii) Needless to say that when a Petition is filed before the trial Court under Section 311 Cr.P.C. the Court has to exercise the discretion to consider such application depending on the facts and circumstances of each particular case.
viii) In the instant case, the witness was thoroughly cross- examined on earlier dates of her cross-examination and hence, in the absence of any specific reason or the reason on which further cross- examination is warranted, it is not justifiable to recall the witness that too, a Child witness in a POCSO case.
ix) Nothing has been either pleaded or proved before this Court or the Court below that prejudice would be caused to the accused because of the impugned Order by not recalling the witness for further cross-examination.
7. In that view of the matter, this Court does not find any illegality or arbitrariness in the impugned Order warranting interference of this Court.
8. In the result, the Criminal Petition is dismissed. Miscellaneous petitions pending if any, shall stand closed.
JUSTICE VENKATA JYOTHIRMAI PRATAPA 24.07.2024 Mjl/* 8 HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA CRIMINAL PETITION No. 2841 of 2024 24.07.2024 Mjl/*