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Orissa High Court · body

2016 DIGILAW 1185 (ORI)

Rahas Behari Santy v. State of Orissa

2016-12-02

S.C.PARIJA

body2016
ORDER 02.12.2016 Heard learned counsel for the petitioner. The accused-petitioner, who is facing trial in Special Case No. 103 of 2013, arising out of Talcher P.S. Case No. 133 of 2013, under Section 376 (2)(h) IPC and Section 4 of the POCSO Act, has filed this application under Section 482 Cr.P.C., challenging the order dated 15.7.2016, passed by the learned Judge, Special Court, Angul, rejecting his application under Section 311 Cr. P.C. to recall P.Ws.1, 5 and 6 for their further cross-examination. Learned counsel for the accused-petitioner submits that as the counsel for the accused had inadvertently left out some relevant questions while cross-examining P.Ws. 1, 5 and 6, an application was filed for recalling the said P.Ws. 1 , 5 and 6 for their further cross-examination, which was necessary for a just decision of the case. It is submitted that the learned trial Court has proceeded to reject the application of the accused-petitioner on the ground that the questions sought to be put to P.Ws. 1,5 and 6 are not relevant and necessary for a just decision of the case, which is not proper and justified. Learned counsel for the accused-petitioner submits that as certain questions could not be asked to P.Ws. 1, 5 and 6 at the time of their cross-examination, it is necessary to recall them for their further cross-examination as otherwise, the accused would be seriously prejudiced. In this regard, reliance has been placed on a decision of the apex Court in Natasha Singh v. CBI (State), (2013) 5 SCC 741 . On a perusal of the impugned order, it is seen that the learned trial Court has elaborately deal with the application of the accused-petitioner filed under Section 311 Cr.P.C., for recalling P.Ws. 1 , 5 and 6 for their further cross-examination. Each of the questions, which the accused proposed to ask the said P.Ws. 1 , 5 and 6 in their further cross-examination has been elaborately dealt with and considering all aspects of the matter, learned trial Court has come to hold that none of the questions, which is sought to be asked to the P.Ws. 1, 5 and 6 in their further cross-examination are necessary for a just decision of the case. 1 , 5 and 6 in their further cross-examination has been elaborately dealt with and considering all aspects of the matter, learned trial Court has come to hold that none of the questions, which is sought to be asked to the P.Ws. 1, 5 and 6 in their further cross-examination are necessary for a just decision of the case. It is well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and to lead evidence in his defence. The object of provision for recall is to reserve the power with the Court to prevent any injustice in the conduct of the trial at any stage. The power available with the Court to prevent injustice has to be exercised only if the Court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specially recorded by the Court before the power is exercised. It is not possible to lay down precise situations when such power can be exercised. The legislature in its wisdom has left the power undefined. Thus, the scope of the power has to be considered form case to case. (See-State (NCT of Delhi) v. Shiv Kumar Yadav and another (2016) 2 SCC 402 ). In State of Haryana v. Ram Meher and others (2016) 8 SCC 762 , the apex Court while dwelling upon the concept of “fair trial” has observed as under:- “24. The decisions of this Court when analysed appositely clearly convey that the concept of the fair trial is not in the realm of abstraction. It is not a vague idea. It is a concrete phenomenon. It is not rigid and there cannot be any straitjacket formula for applying the same. On occasions it has the necessary flexibility. Therefore, it cannot be attributed or clothed with any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. It is not rigid and there cannot be any straitjacket formula for applying the same. On occasions it has the necessary flexibility. Therefore, it cannot be attributed or clothed with any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other. Once absolute predominance is recognised, it will have the effect potentiality to bring in an anarchical disorder in the conducting of trial defying established legal norm. there should be passion for doing justice but it must be commanded by reasons and not propelled by any kind of vague instigation. It would be dependent on the fact situation; established norms and recognized principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalization but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with Cr.P.C. or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. The command of the Code cannot be thrown to winds. In such situation, as has been laid down in many an authority, the Courts have significantly and eminent role. A plea of fairness cannot be utilized to build castles in Spain or permitted to perceive a bright moon in a sunny afternoon. It cannot be acquiesced to create an organic disorder in the system. It cannot be acceded to manure a fertile mind to usher in the nemesis of the concept of trial as such. 25. From the aforesaid it may not be understood that it has been impliedly stated that the fair trial should not be kept on its own pedestal. It ought to remain in its desired height but as far as its applicability is concerned, the party invoking it has to establish with the support of established principles. 25. From the aforesaid it may not be understood that it has been impliedly stated that the fair trial should not be kept on its own pedestal. It ought to remain in its desired height but as far as its applicability is concerned, the party invoking it has to establish with the support of established principles. Be it stated when the process of the Court is abused in the name of fair trial at the drop of a hat, there is miscarriage of justice. And, justice, the queen of all virtues, sheds tears. That is not unthinkable and we have no hesitation in saying so.” The aim of every Court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a Court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the Court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word “shall”. It says that the Court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words “essential to the just decision of the case” are the keywords. The Court must form an opinion that for the just decision of the case recall or re-examination of the witness is necessary. Since the power is wide its exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the Courts which exercise it. The exercise of this power cannot be untrammelled and arbitrary but must be guided only by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. it should not permit the prosecution to fill up the lacuna. Whether recall of a witness is for filling up of a lacuna or it is for just decision of a case depends on the facts and circumstances of each case. It should not cause prejudice to the accused. it should not permit the prosecution to fill up the lacuna. Whether recall of a witness is for filling up of a lacuna or it is for just decision of a case depends on the facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill up a lacuna because the line of demarcation is thin. It is for the Court to consider all the circumstances and decide whether the prayer for recall is genuine. The object of Section 311 Cr.P.C. 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 Cr.P.C. 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. (See-Zahira Habibulla H. Sheikh v. State of Gujarat 10 (2004) 4 SCC 158 . In Rajaram Prasad Yadav v. State of Bihar (2013) 14 SCC 461 , the apex Court referred to the earlier decisions and culled out certain principles which are to be kept in mind while exercising power under Section 311 Cr.P.C., which are as under:- “17.1. 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? 17.2. The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3. 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. 17.4. 17.3. 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. 17.4. The exercise of power under Section 311 Cr PC 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. 17.5. 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. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. 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. 17.8. 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. 17.9. 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. 17.10. Exigency of the situation, fair play and good sense should be the safeguard, 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 any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.” 17.11. 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. 17.12. 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. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. 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. 17.14. The power under Section 311 Cr PC 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. In the instant case, P.W. 1 is the victim girl, P.W. 5 is her mother and P.W. 6 is her maternal uncle. All of them were examined on 20.01.2014 and 03.03.2016 and were subjected to extensive cross-examination. Learned trial Court has discussed in detail the questions sought to be asked to P.Ws. 1, 5 and 6 and has come to hold that the same are not relevant and necessary for a just decision of the case. Applying the principles of law, as discussed above to the facts of the present case, I do not find any infirmity in the impunged order of the learned trial Court so as to warrant any interference. CRLMC being devoid of any merit, the same is accordingly dismissed. CRLMC dismissed.