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2015 DIGILAW 306 (MP)

Iqubal Khan v. State of M. P.

2015-03-17

SUBHASH KAKADE

body2015
JUDGMENT : Subhash Kakade, J. 1. Being aggrieved by impugned order dated 27/01/2015 passed by the learned Special Judge, Harda in Sessions Trial No. 10/2014, the accused/applicant has filed this petition under section 397/401 of the Code of Criminal Procedure, 1973 here-in-after in short "the Code". 2. The learned trial Court by the impugned order rejected the application filed under Section 311 of the Code for recalling the prosecutrix (PW/2) for her cross examination. 3. The case of the prosecution has portrayed on the paper that prosecutrix (PW/2) lodged a report on 25/3/2014 that applicant had committed rape with her before three months. An offence under Sections376, 450 & 506 of IPC and Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act vide crime No. 223/14 has been registered against the applicant. After completion of investigation, the applicant is charge sheeted. 4. Learned Special Judge framed the charge under Section 376, 450 & 506 of IPC and Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act against the applicant, who abjured his guilt therefore set for the trial. 5. During trial statement of prosecutrix (PW/2) was recorded. The applicant had filed an application under Section 311 of Cr.P.C. for recalling the prosecutrix (PW/2), which has dismissed by learned Special Judge by the impugned order, hence, this revision. 6. Shri L.N. Sakle, learned counsel for the applicant submitted that the order rejecting application for recalling of witness for further cross examination amounts to denial of fair trial and will cause irreparable loss to the applicant. The recalling of prosecutrix (PW/2) is just, reasonable and necessary to bring the entire facts and truth before the court so that applicant can get fair justice. 7. On the other hand, Shri Alok Tapikar, learned Panel Lawyer for the respondent/State submitted that the learned trial Court has rightly rejected the application for cross-examination of the prosecution witness, therefore, revision petition deserves to be dismissed. 8. I have gone through the submissions made by learned counsel for the parties and also perused the impugned order and the material records placed before me. 9. 8. I have gone through the submissions made by learned counsel for the parties and also perused the impugned order and the material records placed before me. 9. The Apex Court in case of Hanuman Ram v. The State of Rajasthan and another : (2008) 15 SCC 652 held that the object underlying Section 311 was to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of the witnesses. 10. In this respect, it will be worthwhile to deal with some of the importance earlier decisions of the Supreme Court where the legal principles related to Section 311 of the Code have been dealt with and the principles of law laid down therein. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed by the Supreme Court in Hoffman Andreas v. Inspector of Customs, Amritsar : (2000) 10 SCC 430 . The following passage is in this regard apposite: "6. ...In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible." Please also see Mohanlal Shamji Soni v. Union of India & Anr. : 1991 Supp (1) 271. 11. Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of the Supreme Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through L.Rs. : 2012 (3) SCALE 550 . 12. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself. Merely because a mistake was committed, should not result in the accused suffering a penalty totally disproportionate to the gravity of the error committed by his lawyer. 13. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself. Merely because a mistake was committed, should not result in the accused suffering a penalty totally disproportionate to the gravity of the error committed by his lawyer. 13. After examining averments of application of defence as well as deposition sheet of the prosecutrix (PW/2) particularly her cross-examination, the defence is entitled to recall the prosecutrix (PW/2) for cross-examination again on certain questions. 14. In the result, this revision petition deserves to be and is hereby allowed. The impugned order passed by the learned Trial Court is set aside and it is direct that the prosecutrix (PW/2) shall be recalled by the learned Trial Court and an opportunity to cross-examine the said witness be afforded to the applicant. But, prior to recalling the prosecutrix (PW/2) for further cross-examination, the defence will file a list of questions which are going to be put forth during her further cross-examination. After supplying copy of this list of questions and after giving due opportunity of rebuttal to the respondent/State, the learned trial Court will decide how many questions worthy for further cross-examination of the prosecutrix (PW/2) and then recall the prosecutrix (PW/2) for her further cross-examination on these approved questions only. 15. In fairness on the part of applicant, it must be clarified that opportunity to examine the prosecutrix (PW/2), the needful shall be done on two dates of hearing without causing any un-necessary delay or procrastination from the date of short listing of questions. The learned Trial Court shall endeavour to conclude the examination of the prosecutrix (PW/2) expeditiously and without unnecessary delay. The parties shall appear before the learned Trial Court on 20th of April, 2015. 16. A copy of this order be made available to learned trial Court for information and strict compliance of these directions. 17. Revision is partly allowed.