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2022 DIGILAW 44 (MP)

Pradeep v. State of Madhya Pradesh

2022-01-07

G.S.AHLUWALIA

body2022
JUDGMENT G.S. ahluwalia, J. - This application under Section 482 of Cr.P.C. has been filed against the order dated 24.11.2021 passed by additional Sessions Judge (POCSO act), Mehagaon, District Bhind in Special Sessions Trial No.28/2021 by which the application filed by the applicant under Section 311 of Cr.P.C. has been rejected. 2. It is submitted by the counsel for the applicant that the applicant is facing trial. On 7.8.2021, the prosecutrix was present but the case was adjourned on account of the fact that the Presiding Officer was on leave and the prosecutrix was bound over for 12.8.2021. On 12. 8.2021, the prosecutrix appeared before the Trial Court and her examination-in-chief was recorded. at that time the counsel for the applicant moved an application for deferment of cross-examination on the ground that health condition of his senior advocate is not good, therefore, he is not in a position to cross-examine the prosecutrix. The prayer made by the counsel for the applicant was allowed and the cross-examination of the prosecutrix was deferred subject to payment of cost of Rs.250/- with a clear stipulation that on the next date of hearing, the counsel for the applicant would positively cross-examine the prosecutrix. accordingly, the case was fixed for 1.9.2021 and the prosecutrix was also bound over for the said date. On 1.9.2021, the prosecutrix appeared. The cost of adjournment was also paid and the prosecutrix was cross-examined by Shri Devesh Shukla, counsel for the applicant. It appears that after cross-examining the prosecutrix, Shri Devesh Shukla, counsel for the applicant moved another application for deferring the cross-examination of the prosecutrix. The copy of the said application has not been placed on record. Thereafter, on 23.11.2021, an application under Section 311 of Cr.P.C. was also filed by Shri Radheyshyam Saini on the ground that today he has been engaged and since the health condition of the son of his senior advocate is not good, therefore, he is not available. accordingly, he prayed for time to argue the matter. The case was adjourned to 24.11.2021. On 24.11.2021, the arguments were heard on the question of recalling under Section 311 of Cr.P.C. and the said application was rejected. It is submitted by the counsel for the applicant that certain important questions were left in the cross-examination of the prosecutrix, therefore, if one opportunity is granted, then the applicant would be able to effectively cross-examine the prosecutrix. 3. It is submitted by the counsel for the applicant that certain important questions were left in the cross-examination of the prosecutrix, therefore, if one opportunity is granted, then the applicant would be able to effectively cross-examine the prosecutrix. 3. Per contra, the application is vehemently opposed by the counsel for the respondent/State. It is submitted that every attempt was being made by the defence counsel to get the cross-examination of the prosecutrix deferred. On the first occasion, the cross-examination of the prosecutrix was got deferred on the ground that the health condition of the senior Counsel is not good and the adjournment was granted on payment of cost of Rs.250/- with a clear stipulation that on the next date of hearing, the counsel for the applicant would positively cross-examine the prosecutrix. 4. Heard the learned counsel for the parties. 5. Section 311 of Cr.P.C. reads as under:- '311. Power to summon material witness, or examine person present.- any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.' 6. Thus it is clear that any Court may, at any stage of trial or proceeding can summon any witness if his evidence appears to be essential for just decision of the case. In the present case, the prosecutrix appeared on 12.8.2021 and her examination-in-chief was recorded but on an application filed by the counsel for the applicant, her cross-examination was deferred on the ground that the health condition of the arguing counsel was not good. No medical document has been filed along with this application in support of the said contention. However, the Trial Court after accepting the contention of the counsel for the applicant, deferred the cross-examination on payment of cost of Rs.250/- with a clear stipulation that on the next date of hearing, the counsel for the applicant would positively cross- examine the prosecutrix. The applicant has not filed the copy of the deposition sheet of the prosecutrix. However, the Trial Court after accepting the contention of the counsel for the applicant, deferred the cross-examination on payment of cost of Rs.250/- with a clear stipulation that on the next date of hearing, the counsel for the applicant would positively cross- examine the prosecutrix. The applicant has not filed the copy of the deposition sheet of the prosecutrix. However, the manner in which the case is being dealt with by the applicant it clearly shows that the prosecutrix must have supported the prosecution case. On 1.9.2021, the prosecutrix was cross-examined by the applicant and she was released. However, thereafter it appears that the counsel for the applicant again filed an application for deferment of the cross- examination. Later on, on 23.11.2021 another counsel was engaged by the applicant and he filed an application under Section 311 of Cr.P.C. Although the counsel for the applicant has not placed the copy of the application filed under Section 311 of Cr.P.C. but it is submitted that since certain important questions regarding the age of the prosecutrix were left during the cross-examination, therefore, a prayer was made for re-summoning her. 7. Merely because the applicant has changed his counsel cannot be a ground to recall the witness. 8. The Supreme Court in the case of State (NCT of Delhi) Vs. Shiv Kumar Yadav and another reported in (2016) 2 SCC 402 has held as under :- '29. We may now sum up our reasons for disapproving the view of the High Court in the present case: (i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross-examination. We may now sum up our reasons for disapproving the view of the High Court in the present case: (i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross-examination. They were under no handicap; (ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at the back of such counsel; (iii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice; (iv) The trial court as well as the High Court rejected the reasons for recall of the witnesses; (v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed; (vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial; (vii) Mere change of counsel cannot be ground to recall the witnesses; (viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled; (xi) The High Court has not rejected the reasons given by the trial Court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall i.e. denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings; (x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted.' 9. From the order sheets, it is clear that every attempt is being made by the applicant to harass the prosecutrix by keeping the matter deferred on one pretext or the other. 10. Be that as it may. 11. Full opportunity was granted to the applicant to cross-examine the witness. From the order sheets, it is clear that every attempt is being made by the applicant to harass the prosecutrix by keeping the matter deferred on one pretext or the other. 10. Be that as it may. 11. Full opportunity was granted to the applicant to cross-examine the witness. Even the deposition sheet of the prosecutrix has not been placed on record to show that any material question could not be asked to her. It is not the case of the applicant that incompetent Lawyer had appeared on his behalf. 12. Under these circumstances, no case is made out for recall of the prosecutrix. Thus the Trial Court did not commit any illegality by rejecting the application filed under Section 311 of Cr.P.C. 13. The application fails and is hereby dismissed.