Brief facts of the case are that the petitioner is facing trial under
Sections 363, 366 and 376 of IPC and section 5(1)/6 6 of the
Protection of Children from Sexual Offences (POCSO) Act, 2012.
During trial, statements of mother and father of the prosecutrix
were recorded on 05.01.2019 & 03.08.2019 as PW-2 and PW-4
respectively and the prosecutrix was examined on 27.11.2018 as
PW-1. Now, prosecutrix had attained the age of majority and she
again approached the petitioner for having a love affair with him
and informed him that she had given the statements under
undue pressure of family members. On the basis of aforesaid
assurance of the prosecutrix, petitioner filed an application under Section 311 of Code of Criminal Procedure, 1973, for
re-examination of the prosecutrix and her parents and specific
reasons were assigned in the application filed as Annexure P/5
but learned trial Court vide its order dated 26.11.2021 has
rejected the application without appreciating the fact that the
statement of the prosecutrix was recorded under duress and
prosecutrix turned major only in the year 2021 (as per the
prosecution). Hence, the present petition filed by the petitioner.
8. It is observed by above discussion, right to cross-examination is a part of right to fair trial which every person has in the spirit of right to life and personal liberty. In the case in hand, the ground of re-examination is that earlier the statement of the prosecutrix was recorded under duress but the learned trial court ignoring the aforesaid facts and summarily dismissed the application filed by the petitioner. The learned court below ought to have allowed the petition by exercising the jurisdiction under Section 311 Cr.P.C.
9. In the result, I find some merit in this petition and accordingly, the same stands allowed only for re-examination of the prosecutrix.The learned trial court shall afford a chance to the petitioner to cross-examine the prosecutrix.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 74 of 2022
Order delivered on : 25/02/2022
Manish Sonkar Vs State of Chhattisgarh
Dated: 25 /02/2022
1. Being aggrieved by the order dated 26.11.2021 passed by the
learned Additional Sessions judge, Fast Track Court, Special
Judge (POCSO Act), Durg, District- Durg (C.G.) passed in SCC
POCSO/11/2018 whereby the learned appellate court has
rejected the application filed by the petitioner under Section 311
of Criminal Procedure Code 1973 for recalling of prosecutrix and
her parents.
2. Brief facts of the case are that the petitioner is facing trial under
Sections 363, 366 and 376 of IPC and section 5(1)/6 6 of the
Protection of Children from Sexual Offences (POCSO) Act, 2012.
During trial, statements of mother and father of the prosecutrix
were recorded on 05.01.2019 & 03.08.2019 as PW-2 and PW-4
respectively and the prosecutrix was examined on 27.11.2018 as
PW-1. Now, prosecutrix had attained the age of majority and she
again approached the petitioner for having a love affair with him
and informed him that she had given the statements under
undue pressure of family members. On the basis of aforesaid
assurance of the prosecutrix, petitioner filed an application under
Section 311 of Code of Criminal Procedure, 1973, for
re-examination of the prosecutrix and her parents and specific
reasons were assigned in the application filed as Annexure P/5
but learned trial Court vide its order dated 26.11.2021 has
rejected the application without appreciating the fact that the
statement of the prosecutrix was recorded under duress and
prosecutrix turned major only in the year 2021 (as per the
prosecution). Hence, the present petition filed by the petitioner.
3. Learned counsel for the petitioner submits that impugned order
passed by the trial court is illegal, erroneous and contrary to law
and same deserves to be set aside. It is further submitted that
the parents of the prosecutrix have falsely implicated the
petitioner in the aforesaid offence as there was love affair
between prosecutrix and the petitioner. In the present case, the
factual aspect that whether the initial statements were given
under duress or not, it is necessary that they may be
re-examined, therefore, the application may be allowed. In
support of his argument, reliance has been placed in the matters
of Jagat Ravi v. State of Maharashtra reported in AIR 1968 SC
178, Rama Paswan and Ors. v. State of Jharkhand reported in
(2007) 11 SCC 191 & Iddar and Ors. v. Aabida and Anr.
reported in (2007) 11 SCC 211.
4. On the other hand, learned State counsel supported the
impugned order.
5. Heard counsel for the parties and perused the material available
on record.
6. Hon'ble Supreme Court in the case of Manju Devi v. State of
Rajasthan reported in AIR 2019 SC 1976 has held in para 15 as
under:-
“15. The scope and object of the provision is to enable the
court to determine the truth and to render a just decision
after discovering all relevant facts and obtaining proper
proof of such facts, to arrive at a just decision of the case.
Power must be exercised judiciously and not capriciously
or arbitrarily, as any improper or capricious exercise of
such power may lead to undesirable results. An
application under Section 311 CrPC must not be allowed
only to fill up a lacuna in the case of the prosecution, or of
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 opposite party. Further,
the additional evidence must not be received as a
disguise for retrial, or to change the nature of the case
against either of the parties. Such a power must be
exercised, provided that the evidence that is likely to be
tendered by a witness, is germane to the issue involved.
An opportunity of rebuttal however, must be given to the
other party. The power conferred 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 great caution and
circumspection. The very use of words such as "any
Court", "at any stage”, or "or any enquiry, trial or other
proceedings", "any person" and "any such person" clearly
spells out that the provisions of this section have been
expressed in the widest possible terms, and do not limit
the discretion of the Court in any way. There is thus no
escape if the fresh evidence to be obtained is essential to
the just decision of the case. The determinative factor
should therefore be, whether the summoning/recalling of
the said witness is in fact, essential to the just decision of
the case.”
7. Hon'ble Supreme Court in the matter of Natasha Singh V. CBI
(State) reported in 2013 AIR SCW 3554 has held in para 9 as
under:-
“Fair trial is the main object of criminal procedure, and it is
the duty of the court to ensure that such fairness is not
hampered or threatened in any manner. Fair trial entails the
interests of the accused, the victim and of the society, and
therefore, fair trial includes the grant of fair and proper
opportunities to the person concerned, and the same must
be ensured as this is a constitutional, as well as a human
right.”
8. It is observed by above discussion, right to cross-examination is
a part of right to fair trial which every person has in the spirit of
right to life and personal liberty. In the case in hand, the ground
of re-examination is that earlier the statement of the prosecutrix
was recorded under duress but the learned trial court ignoring
the aforesaid facts and summarily dismissed the application filed
by the petitioner. The learned court below ought to have allowed
the petition by exercising the jurisdiction under Section 311
Cr.P.C.
9. In the result, I find some merit in this petition and accordingly, the
same stands allowed only for re-examination of the prosecutrix.
The learned trial court shall afford a chance to the petitioner to
cross-examine the prosecutrix. The petitioner shall bear the
expenses of the witness which would be fixed by the learned trial
court. The trial court is free to impose conditions as it thinks fit.
10. Needless to say, it is expected that the learned counsel for the
petitioner shall not repeat any question which has already been
put to the witness in her previous cross-examination.
Furthermore, no adjournment will be sought by him on any
ground whatsoever. It is further clarified that in case for any
reason if witness is not available for the purpose of further crossexamination,
his/her testimony shall be read in evidence as it is.
With these directions, the petition stands disposed of. Pending
applications, if any, also stand disposed of.
Sd/-
(Rajani Dubey)
Judge
No comments:
Post a Comment