HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

CRR No. 58/2012, IA Nos. 99001/2014 and 52/2012

Date of order: -03.11.2018

Masoom Hussain Shah
Vs.
State and ors.

Coram:Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge

Appearing counsel:
For Petitioner(s) : Mr. B.S. Salathia, Sr. Advocate with Mr. Sarfraz Shah, Advocate.
For respondent (s) : Mr. Amit Gupta, Dy. AG.

1. Through a middle of a benefaction Criminal Revision Petition, postulant seeks quashment/setting aside of a impugned sequence antiquated 11th August, 2012, upheld by a schooled Principal District and Sessions Judge, Jammu underneath Section 540 of a Cr.P.C, by trait of that prosecutrix/ respondent No. 4 herein has been removed as a witness, whose matter was already accessible before a Court on 26th May, 2012 in a giveaway and satisfactory feeling and yet any pressure, force or coercion. The postulant has also prayed that a matter of a respondent No. 4 might pleasantly be deferred, that has been bound on 27th August, 2012 in a Court of schooled Principal District and Sessions Judge, Jammu compartment a ordering of Revision Petition.

2. The significant pattern of a box is that a fake and whimsical FIR was lodged opposite a postulant in Police Station Janipur, Jammu on 01- 12-2011 underneath Section 376, 452 and 323 RPC and thereafter, a Challan was presented before a Court on 23rd of January, 2012, charges were framed on 23rd of January, 2012. After framing of charges, a Learned Court next bound a calendar date for recording a matter of a prosecutrix. From a date of framing of charges compartment a date of recording a matter of a prosecutrix, some-more than 21 dates were bound by a schooled Court below. Finally, on 26th of May, 2012, a prosecutrix sincerely finished a matter before a Court underneath Section 164 Cr.P.C in Camera and out righteously denied a allegations and charges framed opposite a accused. The prosecutrix was announced antagonistic and she was also after on cross- examined by a schooled Public Prosecutor. In a cross-examination, she sincerely settled that a postulant has conjunction committed any corruption nor she knows a petitioner. After duration of dual months, a prosecutrix changed an focus by Public Prosecutor underneath Section 540 Cr.P.C. The focus was strongly opposite by a postulant by ensue of objections and also on a basement of record annexed.

3. The postulant has assailed a aforesaid impugned sequence on a following grounds:-

i) That a sequence impugned antiquated 11-08.2012 is opposite a contribution and a record annexed by a postulant in a objections filed in a focus changed by a prosecutrix by Learned Public Prosecutor.

ii) That a Court next has not appreciated a contribution of a case, it is applicable to discuss here that a control of a prosecutrix was sincerely explained in a objections wherein one of a arise a prosecutrix has ripped detached a aver and even attempted to gnaw and shoal a partial of it. Accordingly a authorities of Police Station, Janipur entered a news with honour to corruption underneath Section 173 of RPC being a news of 36 of Daily Register antiquated 19-05- 2012 and a duplicate of a same was constructed before a Court of Session Judge, Jammu along with a news with honour of non-execution of warrant.

iii) That a Court next has taken a kindly viewpoint and on antiquated 22.05.2012 by canceling a aver released opposite a prosecutrix who herself was benefaction before a Court. The prosecutrix was destined to put her benefaction on 24th May, 2012 as a calendar was bound for 3 days. On 24th May, 2012, she was calm by her father to ensue a Court for recording her statement. The prosecutrix was threatened by her father that if she gives any matter in a Court, she has to face a deadly consequences.

iv) That on 25th of May, 2012 a prosecutrix in her full senses approached a Court and plainly settled before a Court that she has been threatened by her father to make any matter before a Court, as such a prosecutrix seeks kind lenience of this Hon’ble Court to yield her insurance so that she finished a satisfactory matter before a Court.

v) That a Court next entertained a focus of prosecutrix and destined a schooled Chief Judicial Magistrate to yield confidence to prosecutrix so that she gave satisfactory matter before a Court yet any pressure, force, or coercion. On 25th May, 2012 by a sequence of Chief Judicial Magistrate, Jammu, prosecutrix was sent to women preserve house, namely, Neha Ghar during Kachi Chawni with a gauge of Officer Incharge thereof to make arrangement of protected stay of a applicant on 25.05.2012. On 25.05.2012, respondent No.3 was destined to make protected transport of a postulant before a Hon’ble Court of Learned Principal District and Sessions Judge, Jammu to Neha Ghar and serve for her protected transport from pronounced place to a Court of Session for recording her justification on 26-05-2012. It is impending to discuss here that she remained there in a protected control of Court and thereafter, Neha Ghar and compartment a time of custody, she was conjunction authorised to accommodate any chairman nor was she authorised to go outside. In such rare circumstances, a drift taken by a Public Prosecutor in a focus underneath Section 540 Cr.P.C that a prosecutrix was underneath a change of drugs is totally wrong and is concocted. Copy of a sequence of Learned Chief Judicial Magistrate, Jammu is enclosed herewith and remarkable as Annexure. ‘G’.

vi) That a prosecutrix has finished a matter in a giveaway and satisfactory feeling yet any change of force, vigour and duress and she was even questioned by a Learned Principal Sessions Judge, Jammu that whatever she is deposing before a Court on her possess settle or on a change of any other person. She plainly finished a matter that she is giving a loyal matter and whatever has been settled in a FIR and a matter finished underneath Section 164-A Cr.P.C is totally wrong. The prosecutrix was also cross-examined by a Learned Public Prosecutor in a cross-examination, she sincerely settled that she had lodged FIR underneath a change of her father and she was also calm by him to give any matter before a Court. Copy of a matter is already enclosed.

vii) That a Learned Court next has not appreciated a fact that she has herself approached a Court, seeks a protection, she remained in a protected control by a sequence of a Court. Thereafter, she finished a matter before a Court in Camera and no doubt of any change by any chairman arose. Therefore, a drift taken in a focus that she was underneath a change of drug is totally wrong and is not value appreciating.

viii) That a Learned Court next has conjunction appreciated a contribution nor appreciated a law. Section 540 Cr.P.C has to be taken into caring with good caring and warn and before needing any focus underneath Section 540 Cr.P.C, a probity has to see a drift of filing this application, if a Court observes that a drift taken in a focus and idea of filing a application.

4. we have deliberate a opposition contentions. Counsel for postulant has reiterated all drift taken in petition, given warn for State has upheld a sequence impugned.

5. From a conference of record it is transparent that plant who was 34 years aged during a time incident, has already got her matter record before conference probity on 26/5/2012, wherein she has settled that she does not know accused; indicted has finished zero with her; indicted conjunction abducted her nor raped her .She was announced antagonistic and was cranky examined by PP, yet zero damning was found opposite accused. In this ensue she has retracted her matter given underneath territory 164-A Cr.P.C. She also denied a essence of seizure memos. It is inestimable to discuss here that plant was identified during a time of giving matter before probity by her father and PW Dr. Jotishima. Thereafter, it appears that PP filed an focus u/s 540 Cr.P.C on seductiveness of plant that she be removed again for giving uninformed statement. She settled that her prior matter was accessible underneath force and hazard to life and underneath a change of drug; probity next after mouth-watering objections authorised a application.

6. we have given my courteous caring to whole aspects of a matter and law on a point.

7. Section 540 reads as underneath :

“540. Power to serve element witness, or inspect chairman present.
Any Court may, during any theatre of any inquiry, conference or other move underneath this Code, serve any chairman as a witness, or inspect any chairman in attendance, yet not summoned as a witness, or remember and re-
examine any chairman already examined; and a Court shall serve and inspect or remember and re-examine any such chairman if his justification appears to it essential to a usually preference of a case.”

8. Bare conference of this section, it is transparent that it consists of dual parts.
First partial gives discretionary energy to probity in summoning any chairman as a witness, or inspect any chairman in attendance, yet not summoned as a witness, or remember and re-examine any chairman already examined. Second partial of territory is imperative and it expel a avocation on a probity to call and inspect or remember and re-examine any such chairman if his justification appears to it essential to a usually preference of a case. Therefore, a peerless requirement is usually preference and for that purpose a essentiality of a chairman to be removed and re- examined has to be ascertained. To put it differently, while such a widest energy is invested with a Court, it is unnecessary to state that practice of such energy should be finished judicially and also with impassioned caring and caution. In identical resources of case, a peak probity in identical set of resources ,wherein declare settled zero during conference during initial instance ,but after on changed an focus for recording his matter on a belligerent that he was given threat, gas hold as under:-

9. In Rajaram Prasad Yadav vs. State of Bihar & Anr., reported in AIR 2013 SC 3081 (decided on 4 July, 2013), Hon’ble Apex Court hold as under:-

“22. ……………………………………….
15. Fair conference is a sure intent of rapist procedure, and it is a avocation of a probity to safeguard that such integrity is not hampered or threatened in any manner. Fair conference entails a interests of a accused, a plant and of a society, and therefore, satisfactory conference includes a extend of satisfactory and scold opportunities to a chairman concerned, and a same contingency be ensured as this is a constitutional, as good as a tellurian right. Thus, underneath no resources can a person’s right to satisfactory conference be jeopardized. Adducing justification in support of a counterclaim is a profitable right. Denial of such right would volume to a rejection of a satisfactory trial. Thus, it is essential that a manners of procession that have been designed to safeguard probity are conscientiously followed, and a probity contingency be enthusiastic in ensuring that there is no crack of a same. (Vide Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136; and Sudevanand v. State by C.B.I. (2012) 3 SCC 387.)”

23. From a epitome caring of a above decisions, while traffic with an focus underneath Section 311 Cr.P.C. review along with Section 138 of a Evidence Act, we feel a following beliefs will have to be borne in mind by a Courts:
a) Whether a Court is right in meditative that a new justification is indispensable by it? Whether a justification sought to be led in underneath Section 311 is remarkable by a Court for a usually preference of a case?
b) The practice of a widest discretionary energy underneath Section 311 Cr.P.C. should safeguard that a visualisation should not be rendered on inchoate, vague suppositional display of facts, as thereby a ends of probity would be defeated.
c) If justification of any declare appears to a Court to be essential to a usually preference of a case, it is a energy of a Court to serve and inspect or remember and re-examine any such person.
d) The practice of energy underneath Section 311 Cr.P.C. should be resorted to usually with a intent of anticipating out a law or receiving scold reason for such facts, that will lead to a usually and scold preference of a case.
e) The practice of a pronounced energy can't be dubbed as stuffing in a lacuna in a assign case, unless a contribution and resources of a box make it apparent that a practice of energy by a Court would outcome in causing critical change to a accused, ensuing in miscarriage of justice.
f) The far-reaching discretionary energy should be exercised sensibly and not arbitrarily.
g) The Court contingency prove itself that it was in each honour essential to inspect such a declare or to remember him for serve conference in sequence to arrive during a usually preference of a case.
h) The intent of Section 311 Cr.P.C. concurrently imposes a avocation on a Court to establish a law and to describe a usually decision.
i) The Court arrives during a finish that additional justification is necessary, not given it would be unfit to pronounce a visualisation yet it, yet given there would be a disaster of probity yet such justification being considered.
j) Exigency of a situation, satisfactory play and good clarity should be a protected guard, while sportive a discretion. The Court should bear in mind that no celebration in a conference can be foreclosed from editing errors and that if scold justification was not adduced or a applicable element was not brought on record due to any inadvertence, a Court should be advanced in needing such mistakes to be rectified.
k) The Court should be unwavering of a position that after all a conference is fundamentally for a prisoners and a Court should means an eventuality to them in a fairest feeling possible. In that relation of reasoning, it would be protected to error in foster of a indicted removing an eventuality rather than safeguarding a assign opposite probable change during a cost of a accused. The Court should bear in mind that crude or erratic practice of such a discretionary power, might lead to unattractive results.
l) The additional justification contingency not be perceived as a costume or to change a inlet of a box opposite any of a party.
m) The energy contingency be exercised gripping in mind that a justification that is expected to be tendered, would be convenient to a emanate endangered and also safeguard that an eventuality of come-back is given to a other party.
n) The energy underneath Section 311 Cr.P.C. contingency therefore, be invoked by a Court usually in sequence to accommodate a ends of probity for clever and current reasons and a same contingency be exercised with care, warn and circumspection. The Court should bear in mind that satisfactory conference entails a seductiveness of a accused, a plant and a multitude and, therefore, a extend of satisfactory and scold opportunities to a persons concerned, contingency be ensured being a inherent goal, as good as a tellurian right.

24. Keeping a above beliefs in mind, when we inspect a box on hand, during a unequivocally outset, it will have to be settled that a High Court, while flitting a impugned sequence has totally abandoned a principal objectives with that a sustenance underneath Section 311 Cr.P.C. has been brought into a government book. As righteously argued by a schooled warn for a appellant, during a inaugural when a conference was unequivocally most in a hold of a conference Court, that had each eventuality to hear a appellant, a State, as good as a second respondent, had not even worried to determine either a appellant, who was confronting rapist conference was impleaded as a celebration to a record in a High Court. A conference of a sequence discloses that a High Court appears to have upheld orders on a unequivocally initial conference date, forgetting of a consequences involved. The sequence does not simulate any of a issues dealt with by a Learned Sessions Judge, while rejecting a focus of a respondents in seeking to re-examine PW-9, a second respondent herein. Though orders could have been upheld in this interest by remitting a matter behind to a High Court, carrying courtesy to a time cause and given a whole element for flitting final orders, are accessible on record and given all parties were before us, a exactness of a sequence of a Sessions Judge antiquated 18.11.2009, can be examined and final orders can be upheld one ensue or a other in a benefaction rapist interest itself.

25. With that view, when we inspect a simple facts, we find them as remarkable by a schooled conference Judge being indisputably discordant to a censure elite by a second respondent on 8.7.1999, in a military hire in box No. 71/1999, wherein offences underneath Section 324/307/34 IPC were reported alongwith Section 27 of a Arms Act. Based on a news of a doctor, a chargesheet came to be filed temperament No.127/99, antiquated 31.10.1999, underneath Sections 324/307/34 IPC and no assign underneath Section 27 of a Arms Ac was laid. The pronounced box was put to conference and parties were participating. In a march of a trial, a spin of conference of PW- 9, a second respondent came on 16.3.2007, scarcely after 8 years from a date of occurrence. Second respondent finished a sure matter in his justification that he never finished any matter to a military nor was he beaten on a date of occurrence, nor was he strike by any bullet shot. Further he finished a transparent matter that a damage postulated by him was due to a tumble into a hole dug for constructing a latrine, where some instruments caused a damage postulated by him. He also finished a sure matter that his sons PWs-4 and 5, Babloo and Munna Kumar, were not benefaction during a place of occurrence given one was staying in a hostel in Hulasganj and a other was during Ranchi on a date and time of occurrence, namely, on 07.07.1999, during about 5 p.m. While a pronounced chronicle of a second respondent was settled to have been accessible by a Court next on 16.3.2007, and a justification of a assign was settled to have been sealed on 4.4.2007, a counterclaim justification seem to have also commenced.

26. In that scenario, a second respondent filed a benefaction focus underneath Section 311 Cr.P.C. on 24.8.2007, i.e., scarcely after 5 months after his conference by a conference Court. While filing a pronounced application, a second respondent claimed that his justification tendered on 16.3.2007, was not out of his possess giveaway will and volition, yet due to hazard and duress during a instance of a indicted persons, including a appellant. It was contended on seductiveness of a second respondent that a indicted persons acted a hazard by going to a border of expelling him and that such hazard was meted out to him on 15.3.2007, when he was kidnapped from his wheat margin by a accused, along with dual different persons.

27. The conference Court carrying examined all a above factors in a sequence antiquated 18.11.2009, has hold as under:

“….Either during a time of his justification in Court or successive to his justification he never finished any censure to a probity or any other officer viz. a C.J.M. or any military officer that indicted persons had yielded any vigour on him to spin antagonistic to a assign and to give a go by to a assign case. He has also argued that he did not also record any confirmation or box in this regard. Rather when on a basement of a information antiquated 30.5.2007 given by a indicted Bindeshwar Yadav Khizersarai Police Station box No.78/2007 antiquated 7.6.2008 was purebred by a military a adviser Suresh Prasad has filed this petition and has also got a identical petition filed by a Additional Public Prosecutor that has got no legs to mount and a same is fit to be rejected. He also filed a photocopy of a FIR to Khizersarai Police Station box No.78/2007 in support of his argument.”

28. After observant a above submissions finished on seductiveness of a accused, a conference Court hold as under:

“….After a justification of a informant, Suresh Prasad (PW-9) on 16.03.2007 a Court of Addl. Sessions Judge, F.T.C.-5 sealed a justification of assign on 04.04.2007 after giving eventuality to a schooled Addl. P.P. to furnish a remaining declare on 26.03.2007 and 04.04.2007 that he could not do on a belligerent that a time singular by a Hon’ble Court has expired. The Lordships of Supreme Court have hold in Dohiyabhai Vs. State, AIR 1964 SC 1563 that “Right to re- inspect a declare arises usually after a finish of cranky conference and S.C. 138 says it shall be destined to a reason of any partial of his justification given during cranky conference that is able of being construed unfavourably too his possess side. The intent is to give an eventuality to determine a discrepancies if any between a statements in conference in arch and cranky conference or to explain any matter inadvertently finished in cranky conference or to mislay any ambiguity in a deposition or guess expel on a justification by cranky examination. Where there is no ambiguity or where there is zero to explain, doubt put in review with a solitary intent of giving a change to a declare to unto a outcome of a prior matter should not be asked during review (S.142). Section 154 is far-reaching in a range and probity can assent a chairman job a declare to yet doubt in a inlet of cranky conference during a theatre of review supposing it take caring to give eventuality to a inauspicious celebration to cranky inspect a declare in a such case”. It is transparent from a afore quoted beliefs motionless by a Hon’ble Apex Court and from a justification of PW-9 as good as from a benefaction dual aforesaid petitions filed on seductiveness of a PW-9 and a Additional P.P. that a cranky conference of PW-9 does not enclose any justification opposite his justification in arch that could be explained or finished transparent by review of PW-9 by his re- conference vide Section 138 Evidence Act or Section 311 of a Criminal Procedure Code. It is also transparent that PW-9 had filed petition after filing of a box opposite him by a accused. As such a dual benefaction petitions are not maintainable. However, either a feeling of PW-9 would have been tested on a hold mill of Section 145 Evidence Act by examining a I.O. as some other assign declare have upheld a assign case. The justification of a I.O. of a box is taken would have sufficed a finish of justice.”

29. We find that a factors remarkable by a conference Court and a finish arrived during by it were all suitable and just, while determining a focus filed underneath Section 311 Cr.P.C. We do not find any bonafides in a focus of a second respondent, while seeking a accede of a Court underneath Section 311 Cr.P.C. for his review by merely alleging that on a progressing arise he incited antagonistic underneath duress and hazard meted out to him during a instance of a appellant and other accused. It was utterly apparent that a complaint, that emanated during a instance of a appellant formed on a successive incident, that took place on 30.5.2007, that resulted in a registration of a FIR in Khizersarai Police Station in box No.78/2007, seem to have weighed with a second respondent to come brazen with a benefaction focus underneath Section 311 Cr.P.C., by ensue of an afterthought. If unequivocally there was a hazard to his life during a instance of a appellant and a other accused, as righteously remarkable by a Court below, it was not famous as to because there was no clear anxiety to such duress and undue change meted out opposite him during a instance of a appellant, when he had each eventuality to discuss a same to a schooled conference Judge or to a military officers or to any assign agency. Such an indifferent position and overpower confirmed by a second respondent herein and a sure matter finished before a Court next in his justification as appreciated by a Court next was in a scold perspective, while rejecting a focus of a respondents filed underneath Section 311 Cr.P.C. In a deliberate opinion, a conference Court, had a eventuality to observe a feeling of a second respondent, while tendering justification that swayed a conference Court to strech a pronounced finish and that deserves some-more faith while examining a exactness of a pronounced sequence upheld by a conference Court.

30. In a light of a above conclusion, requesting a several beliefs set out above, we are assured that a sequence of a conference Court impugned before a High Court did not call for any division in any eventuality behind a behind of a appellant herein. The appeal, therefore, succeeds. The sequence impugned antiquated 9.12.2010; upheld in Crl. M.P. 12454/2010 of a High Court is set aside. The sequence of a conference Court stands restored. The conference Court shall ensue with a trial. The stay postulated by this Court in a sequence antiquated 7.3.2011, stands vacated. The conference Court shall ensue with a conference from a theatre it was left and interpretation a same expeditiously, preferably within 3 months from a date of receipt of a duplicate of this order.”

10. In viewpoint of above law, it is transparent that defence of plant that on a progressing arise he incited antagonistic underneath duress and hazard meted out to him during a instance of accused, can't be a belligerent for recalling her and re-examine her; as already remarkable that she was identified by her father and one PW Dr. Jotishima during a time of recording of her prior matter before probity below. At a time of her justification in Court or successive to her justification she never finished any censure to a probity or any military officer that indicted persons had yielded any vigour on her to spin antagonistic to a assign and to give a go by to a assign case. When there is no ambiguity in prior matter or zero to explain, to put doubt in review a declare can't be removed or re-examined. The solitary intent of declare to give change to a chronicle already given in a Court is not a intent of Section 540 Cr.P.C. The re-trial can't be asked underneath a supplies of Section 540 Cr.P.C.

11. In viewpoint of a above, this Criminal Revision Petition is authorised and a impugned sequence antiquated 11.08.2012, upheld by a schooled Principal District and Sessions Judge, Jammu is set aside. Record be sent behind to a conference Court.

(Sanjay Kumar Gupta) Judge
Jammu 03.11.2018