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2016 DIGILAW 636 (MP)

Kinka @ Ramjas Kol v. State Of M. P.

2016-07-29

S.K.PALO

body2016
ORDER : Mr. Vinod Tiwari, learned counsel for the applicant. Mr. Puneet Shroti, learned Panel Lawyer for the respondent/State. Heard. This revision under section 397 read with section 401 of the Code of Criminal Procedure has been directed against the order dated 10-9-2015 passed in Special Case No. 04/2015 by 5th Additional Sessions Judge, district- Rewa whereby the application under section 311 of the Code of Criminal Procedure filed by the accused/petitioner has been disallowed. 2. Filtering unnecessary details, the requisite facts of the case for disposal of this petition, are that the petitioner/accused is facing trial under sections 376 and 506 of the Indian Penal Code and sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012. The prosecutrix was examined and cross-examined as PW-1. However, at a later stage, the petitioner filed an application under section 311 of the Code of Criminal Procedure for recalling the prosecutrix for re-cross-examination on certain points enumerated in the application. Learned Additional Sessions Judge considered the same and held that it would not be in the interest of the minor to recall her repeatedly for evidence as provided in the Rules framed under the Protection of Children from Sexual Offences Act, 2012, dismissed the said application. 3. Learned counsel for the accused/petitioner submits that certain questions were to be asked from the prosecutrix which was not asked by the counsel for the accused during her cross-examination and, therefore, for better disposal of the case, an opportunity be given to recall the prosecutrix for further cross-examination. 4. Learned Panel Lawyer opposed the petition on the ground that lacuna cannot be filled up by exercising the provision of section 311 of the Code of Criminal Procedure. 5. On perusal of the record, it is found that on behalf of the accused/petitioner certain questions were posed to be asked in the application under section 311 of the Code of Criminal Procedure. On a scrutiny of evidence of the prosecutrix (PW-1) recorded on 17-8-2015, it is found that no question has been asked with regard to the questions posed in the application. 6. It is principle of jurisprudence that for fairness of the trial is a virtue, that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. 6. It is principle of jurisprudence that for 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. 7. In the case of Mohanlal Shamji Soni vs. Union of India and another, 1991 Supp (1) SCC 271 the Supreme Court has observed as follows : “27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case.” 8. It is also to be seen that discovery of truth is the essential purpose of any trial or enquiry, observed by a three-judge Bench of the Supreme Court in Maria Margarida Sequeria Fernandes vs. Erasmo Jack De Sequeria through LRs., 2012 (3) SCALE 550 . 9. The averments of the petitioner and proposed questions seem to be relevant and cogent for the disposal of the sessions trial. The opportunity to the accused petitioner for cross-examination of the prosecutrix does not limit only for the benefit of the petitioner as well as it will not weaken the case of the prosecution and on the other hand, would be beneficial for scrutinising the deposition of the prosecutrix. 10. It is for the sacrosanct object that failure of justice on account of mistake of either party be ruled out. Grant of fair opportunity to the accused to prove his innocence is the one and sole object of every fair criminal trial.” 11. In view of the above circumstances and in view of the law laid down by the Supreme Court, this revision is allowed setting aside the impugned order dated 10-9-2015. The trial Court is directed to recall the prosecutrix for further cross-examination only for the limited purpose mentioned in the application. In view of the above circumstances and in view of the law laid down by the Supreme Court, this revision is allowed setting aside the impugned order dated 10-9-2015. The trial Court is directed to recall the prosecutrix for further cross-examination only for the limited purpose mentioned in the application. The expenses to be incurred by the prosecutrix for attending the Court would be borne by the accused/petitioner. The accused/petitioner is directed to co-operate with the trial and not to cause any unnecessary delay. The trial Court is at liberty not to allow the accused/petitioner any further dates, if the accused/petitioner fails to cross-examine the prosecutrix on her appearance before the Court.