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2025 DIGILAW 632 (HP)

Govind singh v. State of Himachal Pradesh

2025-04-04

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. 1. The petitioner has filed the present petition against the order dated 30 th November 2014 passed by learned Sessions Judge (Special Judge) Kullu (learned Trial Court) in a case titled State of HP versus Govind Singh vide which an application filed by the accused under Section 311 of Code of Criminal Procedure, 1973 (CrPC) for recalling the victim for cross-examination was rejected. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience. 2. Briefly stated, the facts giving rise to the present petition are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Section 376 of Indian Penal Code (IPC), Section 4 of Protection of Children from Sexual Offences (POCSO) Act and Section 3(1) (xi) of Scheduled Caste and Schedule Tribes (Prevention of Atrocities) (SC/ST) Act. Learned Trial Court framed the charges, recorded the statements of prosecution witnesses and fixed the matter for recording the statement of the accused under Section 313 of CrPC when the accused filed an application for recalling the victim for cross- examination. It was asserted that when the victim was cross-examined, the accused was lodged in jail. He could not apprise his counsel of the facts of the case. Recall of the witness for her cross-examination is necessary to put some relevant questions to her, which could not be put at the time of her cross- examination. She admitted that she used to talk to the accused, but she made a contrary statement in the Court. Material details regarding the statement could not be put to her. Counsel for the accused intended to put relevant questions to her. Hence, the application was filed to recall the witness for her cross-examination. 3. The application was opposed by filing a reply taking a preliminary objection regarding the lack of maintainability. The contents of the application were denied on merits. It was asserted that sufficient opportunity was granted to the accused to cross-examine the witness. It will not be in the interest of justice to recall the witness for her cross-examination after more than five years. No fruitful purpose would be served by recalling her. Hence, it was prayed that the application be dismissed. 4. Learned Trial Court held that the charges were framed on 25 th May 2018. It will not be in the interest of justice to recall the witness for her cross-examination after more than five years. No fruitful purpose would be served by recalling her. Hence, it was prayed that the application be dismissed. 4. Learned Trial Court held that the charges were framed on 25 th May 2018. The victim was examined on 29 th September 2018. She was thoroughly cross-examined by the defence. The matter was listed for recording the statement of the accused under Section 313 Cr.P.C. when the application was filed. More than five years had elapsed since the examination of the victim. The accused was brought to the Court at the time of examination of the witness, and the fact that he was in custody is irrelevant. Hence, the application was dismissed. 5. Being aggrieved from the order passed by learned Trial Court, the accused has filed the present application, asserting that the learned Trial Court had failed to appreciate that an adequate opportunity has to be given to the accused to defend himself. The victim made improvements in the statements given by her in the Court vis-a-vis her statements made under Sections 154 and 164 Cr.P.C. She admitted that she used to talk to the accused, however, she made a contrary statement in the Court. The accused could not apprise his counsel about the facts as he was in custody. The questions to be put to the victim are highly relevant and could not have been put earlier. Hence, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 6. I have heard Mr. Sudhir Bhatnagar, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy General for the respondent/State. 7. Mr. Sudhir Bhatnagar, learned counsel for the petitioner, submitted that the learned Trial Court erred in dismissing the application. The accused was in custody, and he could not brief his counsel properly. The victim materially improved upon her earlier version recorded in her statements under Sections 154 and 164 of Cr.P.C. She is to be cross-examined regarding the improvements made by her. She contradicted herself and denied that she was in touch with the accused. Therefore, he prayed that the present revision be allowed and the victim be recalled for further cross-examination. 8. Mr. She contradicted herself and denied that she was in touch with the accused. Therefore, he prayed that the present revision be allowed and the victim be recalled for further cross-examination. 8. Mr. Ajit Sharma, learned Deputy Advocate General for the respondent-State, submitted that the application was filed after the lapse of five years from the victims’ examination. The accused failed to provide any reason for not properly cross- examining the victim earlier. The application was meant to harass the victim and is contrary to Section 33 (5) of the POCSO Act. The learned Trial Court had rightly dismissed the application, and no interference is required with the order passed by the learned Trial Court. Hence, he prayed that the revision petition be dismissed. 9. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 10. The accused filed the revision against an order dismissing an application filed under Section 311 of the CrPC. It was held by this Court in Vishwa Narayan Goswami v. Ram Rattan Sharma, Latest HLJ 2009 (1) 552, that an order dismissing an application for leading additional evidence is an interlocutory order, which is not amenable to the revisional jurisdiction. It was observed: - “7. The first question staring at the face is whether the order passed under Section 311 of the Code of Criminal Procedure by the learned trial Magistrate is an "interlocutory order" and not amenable to the revisional jurisdiction. My answer to it is in affirmative. The order passed by the Court under Section 311 Cr.P.C. is an "interlocutory order" and revision against it is barred under Section 397(2) of the Code of Criminal Procedure. 8. In fact, the word "interlocutory order" has not been defined in the Code. However, in Amar Nath's Case 1978 SCC (Cri) 10 , the Supreme Court held that the word "interlocutory order" in Section 397(2) of the Code has been used in a restricted sense and not in a broad or artistic sense and it merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights of the parties but any order which substantially affects the right of the parties can not be said to be an "interlocutory order". 9. 9. In Madhu Limaye's Case 1980 SCC (Cri) 695 , a three-judge Bench of the Supreme Court held that an order rejecting the plea of the accused on a point which when accepted, will conclude the particular proceeding, cannot be held to be an "interlocutory order". 10. Further in Rajendra Kumar Sita Ram Pande vs. Uttam and Another, 1999 (3) SCC 134 , the apex Court took note of the above proposition of law and held that the above being the position of law that if the order is not purely interlocutory but intermediate or quasi-final, the powers of High Court would be attracted. 11. Yet in another case K.K. Patel vs. State of Gujarat, (2000) 6 SCC 195 , while relying upon Rajendra Kumar Sita Ram Pande's case supra, held that it is well neigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage, the feasible test is whether upholding the objections raised by a party, it would result in culminating the proceedings if so any order passed on such objection would not be merely interlocutory in nature as envisaged under Section 397(2) of the Code. 12. In the present case, the order passed on the application under Section 311 Cr.P.C. by the learned trial Court is neither an intermediate nor a quasi-final order and further the proceedings in the main case against the accused petitioner would not culminate even on acceding to the request of the respondent, therefore the order impugned in revision petition by the accused before the learned Sessions Judge is an "interlocutory order" and was not amenable to his revisional jurisdiction. 11. It was held by the Hon’ble Supreme Court of India in Sethuraman vs Ratamanickam, (2009) 5 SCC 153 , that an order refusing to call the documents and lead additional evidence is interlocutory. It was observed: - “5. 11. It was held by the Hon’ble Supreme Court of India in Sethuraman vs Ratamanickam, (2009) 5 SCC 153 , that an order refusing to call the documents and lead additional evidence is interlocutory. It was observed: - “5. Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C. were interlocutory orders and, as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused, and the only defence that was raised was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and the other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), the revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed.” 12. This judgment was followed by the Andhra Pradesh High Court in M. Koteswara Reddy v. State of A.P., 2019 SCC OnLine AP 318, and it was held that an application under Section 391 of Cr.P.C. is interlocutory and no revision lies against an order dismissing such an application. It was observed: - “ 7. Now, it is well-settled law that an order summoning a witness under Section 391 Cr. P.C., the summoning of documents under Section 91 Cr. P.C., etc., are all pure and simple interlocutory orders. On the same analogy, the petitioner filed under Section 391 Cr. P.C. in the appellate Court also to summon a witness, even for further cross-examination, is also a pure and simple interlocutory order. Section 397(2) Cr. P.C. imposes a clear bar to exercise the power of revision under Section 397(1) Cr. P.C. in respect of interlocutory orders. xxx 9. On the same analogy, the petitioner filed under Section 391 Cr. P.C. in the appellate Court also to summon a witness, even for further cross-examination, is also a pure and simple interlocutory order. Section 397(2) Cr. P.C. imposes a clear bar to exercise the power of revision under Section 397(1) Cr. P.C. in respect of interlocutory orders. xxx 9. In view of the dictum laid down in the aforesaid judgment of the Apex Court that revision filed under Section 397 (1) Cr.P.C. against an interlocutory order is not maintainable in view of the bar engrafted under Section 397 (2) Cr.P.C., this revision, which is preferred against an interlocutory order passed under Section 391 Cr.P.C., to recall PW.1 for cross-examination, is also not maintainable.” 13. Delhi High Court also took a similar view in Mohd. Hasan v. State, 2023 SCC OnLine Del 5469 and held: “11. It is trite law that an order passed under Section 311 Cr. P.C. is purely an interlocutory order and a revision against an interlocutory order is clearly barred under Section 397(2) Cr. P.C. Therefore, the present revision petition filed against the order dated 31.03.2023 passed by the Ld. ASJ dismissing the application under Section 311 Cr. P.C. is thus not maintainable.” 14. Hence, the present revision petition is not maintainable. 15. Even otherwise, the application does not assign any valid reason for recalling the victim for her cross-examination. The only reason assigned in the application is that the accused was lodged in jail at the time of the examination of the victim. Learned Trial Court had rightly pointed out that the accused was brought to the Court at the time of the victim’s examination, and the plea that he was unable to brief his counsel is incorrect. 16. It has also been asserted in the application that the victim has materially improved upon her previous version. This submission will not help the accused. The statements made by the victim under Sections 154 and 164 of Cr.P.C. were available to the accused, and he would have been aware of the improvements made by her at the time of her examination. No question was asked regarding the improvement, and the accused has to blame himself and not any other person for not asking the proper questions. 17. It was asserted that the victim had contradicted herself. No question was asked regarding the improvement, and the accused has to blame himself and not any other person for not asking the proper questions. 17. It was asserted that the victim had contradicted herself. She admitted that she was in touch with the accused, but she made a contrary statement in the Court. This will also not help the accused because this fact was also known to the accused at the time of her examination, and he could have cross- examined the victim regarding this fact. However, he did not do so, and he cannot claim that the victim should be recalled for further cross-examination without assigning any valid reason for not putting the relevant question to the victim at the time of her cross-examination. 18. Section 33(5) of the POCSO Act provides that the victim shall not be repeatedly called to testify. It was laid down by the Hon’ble Supreme Court in Madhab Chandra Pradhan vs. State of Odisha, Special Leave Petition (Crl.) No. 10082 of 2024 decided on 5 th August 2024, that the victim is not to be recalled for re-examination/cross-examination without assigning any reasons. It was observed: “9. From a perusal of the record of the case, it is abundantly clear that ample opportunities were given to the defence counsel to cross-examine the victim. When the victim has been examined and then cross-examined at length twice already, mechanically allowing an application for recall of the victim, especially in the trial of offences under the POCSO Act, would defeat the very purpose of the statute. Hence, we find no error or illegality in the impugned order of the High Court or the Order dated. 10.10.2023 of the Special Court.” 19. In the present case, the accused has failed to assign any valid reason for recalling the victim for her cross-examination, and the learned Trial Court had rightly dismissed the application for recall of the victim. No interference is required with the order passed by the learned Trial Court in the exercise of the inherent jurisdiction of this Court. 20. In view of the above, the present petition fails and the same is dismissed. The parties, through their respective counsel, are directed to appear before the learned Trial Court on 25 th April, 2025 . No interference is required with the order passed by the learned Trial Court in the exercise of the inherent jurisdiction of this Court. 20. In view of the above, the present petition fails and the same is dismissed. The parties, through their respective counsel, are directed to appear before the learned Trial Court on 25 th April, 2025 . The record of the learned Trial Court be returned forthwith, so as to reach the learned Trial Court well before the date fixed. 21. The observations made herein before shall remain confined to the disposal of the petition and will have no bearing whatsoever on the merits of the case.