ORDER : 1. The petitioner has filed this petition under Section 482 of the Cr.P.C. for setting aside the order dated 24.11.2023 (Annexure P/1) passed by the learned Special Judge (Atrocities Act) North Bastar Kanker (C.G.) in Special Session Case No. 07/2019 by which the application filed by the petitioner under Section 311 of the Cr.P.C. has been rejected. 2. The petitioner is facing trial under Sections 376. 294, 354, 450 of IPC read with Section 3 (2) (v) of the Schedule Caste & Schedule Tribe (Prevention of Atrocities) Act, 1989 and Section 67 (A) of Information Technology Act. After framing of charge, the witnesses have been summoned and the prosecutrix has been examined. The prosecutrix was examined before the learned Special Judge wherein she has stated that she is known to the accused as she was also posted as clerk in the Collectorate Branch, Kanker. Thereafter, they developed friendship and the accused used to say that he loves her and wants to marry her. The petitioner has provided rent accommodation of the house where he was also residing in the month of April, 2015 and thereafter started staying at night in the room of the victim and made an attempt to have physical relationship with her which was objected by the prosecutrix. She has also stated that she is not agreeable to marry with the petitioner as both belong to different castes and still he used to say that despite different caste, he is ready to marry her and thereafter alluring her, he has forcefully made physical relationship with her and started living in the room and continuously making relationship with her. She has also stated that when the accused was transferred to Jabalpur region he used to send ticket to her to visit Jabalpur and thereafter he has made physical relationship with her on the pretext of marriage. It has also been stated by her that in the year 2016, the marriage of the accused was fixed with some other girl, as such, he started maintaining distance with the prosecutrix and when she visited to his house at Jabalpur, he has not allowed her to enter into his home. When she insisted him for marriage, he has abused her. Therefore, she has lodged the complaint. The prosecutrix was extensively cross-examined by the defence counsel before the trial Court. 3. When she insisted him for marriage, he has abused her. Therefore, she has lodged the complaint. The prosecutrix was extensively cross-examined by the defence counsel before the trial Court. 3. Learned counsel for the petitioner would submit that the petitioner has filed WPCR No. 200/2019 before this Court wherein, this Court has passed the following order:- “Learned counsel for the petitioner submits that the compromise has been effected between the petitioner and complainant as they were maintaining live-in relation, out of which, the alleged offence was said to have been committed. Without any further observations on merits of the case, it is observed that the parties may record their statements before the Additional Registrar (Judicial) on 20.06.2022. Subsequently, the merit of the case with respect of compounding the offence shall be considered at a latter state.” 4. The said WPCR has been dismissed by Hon’ble Division Bench of this Court on 18.03.2023, the operative part of the order is reproduce of below:- “The offences under which the charge-sheet has been filed are all non- compoundable offences and even if the complainant wishes to take back her complaint, the same may not be allowed. Firstly, the complainant has made serious allegations against the petitioner that she has been abused and exploited sexually and has been uttered filthy language naming her caste. For the reasons best known to the respondent No. 2, she now intends to withdraw her complaint and does not want any action to be taken against the petitioner which cannot be done at this stage when the trial is under progress and the statement of the complainant/respondent No. 2 has been recorded by the learned Trial Court where she has deposed against the petitioner with regard to sexual exploitation. Further, out of total 21 prosecution witnesses, statement of 19 witnesses have been recorded and only two formal witnesses’ statements are left to be recorded. 15. As observed by the Supreme Court in Narender Singh (supra), timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/ investigation. 15. As observed by the Supreme Court in Narender Singh (supra), timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/ investigation. In the case in hand, the prosecution evidence is almost complete as out of total 21 prosecution witnesses, 19 have already given their statement, and even in the deposition made before the learned trial Court, the complainant/respondent No. 2 has deposed against the petitioner and now at this juncture, filing any application/affidavit for compromise or compounding of the offences cannot be accepted. Even otherwise, the offences alleged are in relation to sexual exploitation and uttering caste based remarks against the complainant by the petitioner which cannot be termed to be a private dispute between the parties. It has serious adverse societal effects. Therefore, the criminal proceedings on the basis of alleged compromise of the accused and the victim cannot be quashed. The same is not legally permissible. The trial of the case is required to proceed where the accused/petitioner will have the opportunity to put forth his version and to take defence, whatsoever may be available to him. 17. In view of the ratio laid down by the Supreme Court in Kapil Gupta (supra) and Narender Singh (supra), we are of the considered opinion that this is not a fit case where we should exercise the powers under Article 226 of the Constitution of India to quash the FIR and the consequential proceedings or to quash the order framing charge against the petitioner dated 27.2.2019 (Annexure P-3). 18. Accordingly, this petition is dismissed. Interim order dated 03.03.2022 passed by the learned Single Judge also stands vacated.” 5. After dismissal for the WPCR, the petitioner has moved an application under Section 311 of the Cr.P.C. contending that if any physical relationship has been developed between the accused and the victim, it is a consensual act as no false pretext of marriage was made by the accused. After dismissal for the WPCR, the petitioner has moved an application under Section 311 of the Cr.P.C. contending that if any physical relationship has been developed between the accused and the victim, it is a consensual act as no false pretext of marriage was made by the accused. It has also been contended that during pendency of the criminal proceeding, WPCR No. 200/2019 was filed before this Court wherein both the parties have submitted application with an affidavit and as per direction of this Court, the victim and the accused have recorded their statements on oath which clearly suggests that there is contradiction in the statement of the victim before the learned Sessions Judge during trial and the statement recorded before the Additional Registrar (Judicial) of this Court, as such for bringing the true and correct fact the victim is required to be re-examined and would pray for allowing the application. The petitioner to substantiate his submission, has referred to the judgment rendered by Hon’ble the Supreme Court in case of State Vs. N. Seenivasagan reported in (2021) 14 SCC 1 . 6. The victim has filed reply to the said application mainly contending that the learned trial Court has already rejected the application under Section 311 of the Cr.P.C. on 11.02.2020 and thereafter, circumstances have not been changed as such, prayed for rejection of the application. 7. Learned trial Court vide its order dated 04.11.2023 has rejected the said application under Section 311 of the Cr.P.C. by recording its finding that the defence was given sufficient opportunity to cross-examine the witness and without rhyme and reason to delay the proceeding, the application has been filed. Learned trial Court has also recorded its finding that earlier also application under Section 311 of the Cr.P.C. has been rejected and thereafter there are no circumstantial changes in the facts and circumstances of the case, as such, it has been rejected. This order is being assailed by the petitioner by filing the petition under Section 482 of the Cr.P.C. 8. Learned counsel for the petitioner would submit that the victim in her statement recorded on 29.02.2020 has stated that she has moved an application without any fear or pressure voluntarily and she has love affair with the applicant and physical relationship was made and now she has no complaint against the petitioner and she is not intended to prosecute the proceedings. He would further submit that since the victim has voluntarily stated about closure of the proceeding before this Court which creates doubt over the veracity of the statement recorded before the learned trial Court, as such the learned trial Court should have allowed the application filed by the petitioner under Section 311 of the Cr.P.C. To substantiate his submission, he has referred to the judgment of Hon’ble the Supreme Court in case of Rajaram Vs. State of Bihar reported in (2013) 14 SCC 461 and Natasha Singh Vs. CBI reported in (2013) 5 SCC 741 . 9. He would further submit that the factual matrix involved in this case and the law not only with regard to re-examination of witness in exercise of jurisdiction under Section 311 of Cr.P.C. but also the law as in force in the matter of consensual sex laid down in the matter of Sonu alias Subhash Kumar (supra) and also by this Hon'ble Court in case Monika Sarthi (Supra) which would be clear to this Court that the Court below has committed illegality in not permitting the applicant to re-examine the prosecutrix with regard to subsequent facts, particularly statement on oath recorded before this Court which is contrary to the statement recorded before the Court below and when two statements cannot dwell together, this is the case which requires interference by this Court. He would further submit that Hon’ble the Supreme Court in case of State vs. N. Seenivasagan, (2021) 14 SCC 1 , has examined the provisions of Section 311 Cr.P.C. and has held that for allowing the application, the true test is whether examination is essential for just decision of the case. In the case at hand, the just decision can only be arrived at if two contrary evidence, one before the Court below and another before this Court with regard to the same charge, are not considered by the court below. As such, the examination of the victim is necessary. He would further submit that re-examination of witness on the basis of subsequent events and rejection of the application by the Court below for the reason that the applicant has cross-examined the prosecutrix in detail at an earlier point of time cannot be termed as just ground for rejection of application and would pray for quashing of the impugned order dated 24.11.2023. 10. 10. He would further submit that the law has been summarized for recall of witness, as per Section 311 of Cr.P.C. in case of Rajaram Vs. State of Bihar reported in (2013) 14 SCC 461 and Natasha Singh Vs. CBI reported in (2013) 5 SCC 741 , and would refer to paragraph 15 of the judgment which reads 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 porties. 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 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." 11. 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." 11. Respondent No. 2 has filed reply mainly admitting the facts of the case and also stated that if this Court directs for appearance before the trial Court for re-examination, she has no objection. It has also been contended that respondent No. 2 supports the case of the petitioner and to this effect has filed the affidavit of the prosecutrix and reply to the application given by her in reply to the application filed under Section 311 of the Cr.P.C. before the learned trial court at Kanker on 29.02.2020 wherein respondent No. 2 has stated that she is willing to compromise the matter with the applicant without any fear or pressure and the relation between the complainant and the applicant is pleasant and due to this reason, she wants to compromise the matter and withdraw the instant case. It has also been contended that respondent No. 2 has also filed an affidavit before this Court in WPCR No. 200/2019 on 09.05.2022 thereby stating the compromise entered between the applicant and her and in pursuance of the same, this court directed the applicant and respondent No. 2 to get their statements recorded before the Additional Registrar (Judicial) on 20.06.2022 and the same was recorded. Thus, it has been prayed that she is ready to appear before the learned trial Court Kanker, if this Court allowed the prayer of the petitioner. 12. The State has opposed the submission and would submit that once the victim has examined before the trial Court wherein she has supported the case of the prosecution, therefore, she cannot be allowed to turn round and make the statement contrary to her statement and even this is not the object of Section 311 of the Cr.P.C. and would pray for rejection of the application. 13. I have heard learned counsel for the parties at length and perused the documents placed on record with utmost satisfaction. 14. 13. I have heard learned counsel for the parties at length and perused the documents placed on record with utmost satisfaction. 14. Learned counsel for the petitioner would submit that from factual matrix involved in this case and the law not only with regard to re-examination of witness in exercise of jurisdiction under Section 311 CrPC but also the law as in force in the matter of consensual sex laid down in the matter of Sonu alias Subhash Kumar (supra) and also by this Court in case of Monika Sarthi (supra), it would be clear to this Court that the Court below has committed illegality in not permitting the applicant to re- examine the prosecutrix with regard to subsequent facts, particularly statement on oath recorded before this Hon'ble Court which is almost contrary to the statement recorded before the Court below and when two statements cannot dwell together, as such this is the case which requires interference by this Court. 15. Learned counsel for the petitioner would further submit that the order impugned is perverse and not sustainable in law, because the Court below ought to have appreciated that present is the case of consensual sex and in such case, a person cannot be charged with the offence of rape as held in the case of Sonu alias Subhash Kumar (supra) as also by this Hon'ble Court in WA No. 83/2021 (supra) and when such defence is tried to be obtained by way of cross-examination/ re-examination, in the changed circumstances, the Court is obliged to give opportunity to the accused to putforth all his defence absolving him from the charges. It has been further contended that the Court below ought to have appreciated that at an earlier point of time the evidence of unimpeachable character was not on record rather has not been originated as the prosecutrix has been examined before the Court below on 16.5.2021 and an affidavit in support of applicant was submitted thereafter this Court has directed examination of the parties by the Additional Registrar (Judicial) of this Court and the statement of parties recorded before this Court is material evidence and in respect of same charge then denial without considering these aspects which is basis for filing application under Section 311 Cr.P.C. amounts to illegality. 16. 16. It has been further contended that the law propounded by the Hon'ble the Supreme Court in the matter of State Vs. N. Seenivasagan, reported in (2021) 14 SCC 1 , in relation to Section 311 of Cr.P.C. is that true test is whether examination is essential for just decision of the case. In the case at hand, the just decision can only be arrived at if two contrary evidence, one before the Court below and another before this Court with regard to the same charge, is considered by the Court below. It has been further contended that the application has been filed before the Court below for re-examination of witness on the basis of subsequent events and rejection of the application by the Court below for the reason that the applicant has cross-examined the prosecutrix in detail at an earlier point of time cannot be termed as just ground for rejection of the application. 17. On the other hand, learned counsel for respondent No. 2 would submit that the prosecutrix has also filed an affidavit which was given by her before the learned trial court at Kanker on 29.02.2020 wherein it has been stated that she is willing to compromise the matter with the applicant without any fear or pressure and the relation between the complainant (respondent no. 2) and the applicant (accused) is pleasant and due to this reason, she wants to compromise the matter and withdraw the instant case, which was instituted on her complaint and also sought the permission of the learned court below to compound the same. The respondent also submitted an affidavit before this Court in WPCR No. 200/2019 on 09.05.2022 thereby stating the compromise entered between the applicant and her and in pursuance of the same, this Court directed the applicant and the answering respondent to get their statements recorded before the Additional Registrar (Judicial) on 20/06/2022. 18. It has been further contended that the case instituted by the applicant against the respondent bearing criminal case number 462/2021 and crime no. 130/2019 for an alleged offence punishable under Section 67, 67A, 67B of the I.T. Act, 2000 has resulted in the acquittal of the respondent on 12.12.2023 after recording of the evidence of the present applicant before the learned JMFC, North Bastar-Kanker. 130/2019 for an alleged offence punishable under Section 67, 67A, 67B of the I.T. Act, 2000 has resulted in the acquittal of the respondent on 12.12.2023 after recording of the evidence of the present applicant before the learned JMFC, North Bastar-Kanker. It is humbly submitted before this Court that the answering respondent is firm on her stand which was firstly made before the learned Trial Court, Kanker vide her application for compromise dated 29/02/2020 and upto this date, the relationship between both is harmonious, and has no grievance against the present applicant. In this view of the matter, respondent No. 2 is ready to appear before the Learned Trial Court, Kanker if this Court deems fit to allow the prayer of the applicant filed under section 311 of Cr.P.C. 19. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 20. From the above stated factual and legal position, the point to be determined by this Court is whether the learned trial Court was justified in rejecting the application. 21. To decide the issue raised in this petition, it is expedient for this Court to extract Section 311 of the Cr.P.C. which reads as under:- “Section 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 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. [311-A. Power of Magistrate to order person to give specimen signatures or handwriting. [311-A. Power of Magistrate to order person to give specimen signatures or handwriting. [Inserted by Act of 2005, Section 27 (w.e.f. 23-6-2006).]- If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Provided that no order shall be made under this Section unless the person has at some time been arrested in connection with such investigation or proceeding.]” 22. Learned counsel for the petitioner would submit that since there is a contradictory statement of the victim i.e. one before the trial Court wherein she has stated against the applicant and the statement recorded before this Court in WPCR No. 200/2019 has deposed in favour of the petitioner, as such, to ascertain which statement is true and correct, the examination of the victim is very essential. Thus, the learned trial Court has committed illegality in dismissing the application under Section 311 of the Cr.P.C. This submission deserves to be rejected as the witnesses who have already been examined and cross-examined fully said witnesses cannot be recalled and re-examined to deny the evidence as she has already given before the Court and no opportunity at a later stage can be given to witnesses to completely efface the evidence already given by her under oath. It is also not in dispute that 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, fair play, and good sense appear to be the only safe guard and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. 23. Considering the above parameters required for allowing the application, it cannot be overlooked that it is a case where a victim is subjected to sexual assault by the applicant/accused. 23. Considering the above parameters required for allowing the application, it cannot be overlooked that it is a case where a victim is subjected to sexual assault by the applicant/accused. Probably it appears that he had also won over the prosecutrix either by hook or crook or under threat or coercion or by giving some allurement. Therefore, in such situation, learned trial Court was fully justified not to recall the witnesses for further examination. 24. The issue with regard to examination of victim again when she was already examined and cross-examined at length and deposed in favour of the prosecution, subsequently, if she has made some statements in some other proceedings then also she cannot be allowed to make statement contrary to the statement what she has already deposed before the trial Court. Hon'ble the Supreme Court in case of Yakub Ismailbhai Patel Vs. State of Gujarat, reported in (2004) 12 SCC 229 has held at paragraph 38 & 39 as under:- “38. Significantly this witness, later on filed an affidavit, wherein he had sworn to the fact that whatever he had deposed before Court as PW-1 was not true and it was so done at the instance of Police. 39. The averments in the affidavit are rightly rejected by the High Court and also the Sessions Court. Once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in Court on oath. It is pertinent to note that during the intervening period between giving of evidence as PW-1 and filing of affidavit in Court later he was in jail in a narcotic case and that the accused persons were also fellow inmates there.” 25. Again Hon'ble the Supreme Court in case of Mishrilal & others Vs. State of M.P. & others, reported in (2005) 10 SCC 701 has held at paragraph 6 as under:- “6. In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined in-chief and crossexamined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. Once the witness was examined in-chief and crossexamined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW 2 Mokam Singh on 6.2.1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses.” 26. Hon'ble the Supreme Court in case of Nisar Khan alias Guddu & others Vs. State of Uttaranchal, reported in (2006) 9 SCC 386 has held at paragraph 9 as under:- “9. The other contention of Mr. Jaspal Singh that all the eye-witnesses were turned hostile and the credibility of their testimonies are doubted. It is clearly apparent on the record that eye-witness PW.4-Naeem Babu had filed an application before the trial Magistrate (Ex.Kha-27) that he has been threatened and intimidated by the accused not to depose against them. So also PW.1 and PW.2 who were eye-witnesses and supported the prosecution case consistently were turned hostile. PW.1 and PW.2, direct eye-witnesses of the occurrence were examined, cross-examined and discharged on 4.1.2001. They were recalled on 7.1.2002 and re-examined by the defence on which date all of them turned hostile and resiled from the previous statement. It clearly appears that the eye-witnesses were won over by threat or intimidation after more than one year of their examination and cross-examination and ultimately when the eye-witnesses were won over by the accused they were recalled and re-examined on 7.1.2002. It clearly appears that the eye-witnesses were won over by threat or intimidation after more than one year of their examination and cross-examination and ultimately when the eye-witnesses were won over by the accused they were recalled and re-examined on 7.1.2002. Even on reexamination on 7.1.2002 the eye-witnesses consistently supported the prosecution story with regard to the date and place of incident, the Car in which they came and the genesis of incident. To that extent they supported the prosecution story. They resiled from the previous statement only with regard to the identity of the accused. It is in evidence on record that the accused and prosecution parties are at loggerheads because of business rivalry and known to each other from before. Naturally, by the time the eye-witnesses were recalled, they were won over either by money, by muscle power by threats or intimidation. We are of the view that no reasonable person properly instructed in law would allow an application filed by the accused to recall the eyewitnesses after a lapse of more than one year that too after the witnesses were examined, cross-examined and discharged. 27. The record of the case would further demonstrate that Hon’ble Division Bench of this Court while dismissing the WPCR No. 200/2019 has recorded its finding and has not accepted the settlement arrived at between the applicant and the accused after the alleged commission of offence and also recorded its finding that the prosecution evidence is almost complete as out of total 21 prosecution witnesses 19 have given their statement and the victim has deposed against the petitioner and now at this juncture, filing any application/ affidavit for compromise or compounding of the offence cannot be accepted. Thereafter, the applicant has filed present application reiterating the same stand which is nothing but an abuse of process of law, therefore, the learned trial Court has not committed any illegality in rejecting the said application vide impugned order dated 24.11.2023 which warrants any interference by this Court. 28. Considering the entire facts and circumstances of the case and the reason assigned by the accused cannot be germane for exercise of power under Section 311 of the Cr.P.C. Accordingly, the present CRMP deserves to be and is hereby dismissed.