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Karamjit Singh @ Kammi vs State Of Punjab on 19 December, 2018

Crl. Misc. M-13470 of 2016 -1-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

Crl. Misc. M-13470 of 2016 (OM)
Date of Decision: December 19, 2018

Karamjit Singh @ Kammi

…Petitioner

Versus

State of Punjab

…Respondent

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present:- Mr. Preetinder Singh Ahluwalia, Advocate
for the petitioner.

Ms. Rajni Gupta, Senior DAG Punjab.

Mr. Mohit Garg, Advocate
for the complainant.

********

JAISHREE THAKUR, J.

The petitioner herein seeks to challenge order dated 21.03.2016

passed by Additional Session Judge Patiala, whereby application filed by the

petitioner under Section 311 of the Code of Criminal Procedure (in short

‘Cr.P.C.’) for recalling witness PW1 prosecutrix for further cross-

examination has been dismissed.

2. In brief, the facts as stated are that, the petitioner was

implicated in the FIR No.140 dated 23.07.2015 registered at Police Station

Civil Lines Patiala for offences punishable under Sections 363, 366A, 376

(N), 376, 506, 34 of the Indian Penal Code and Section 4 of the Protection

of Children From Sexual Offences Act, 2002 (for short ‘POCSO Act’). The

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case was registered on the basis of a statement made by complainant Pinky

whereby she raised allegations against the petitioner in respect of raping her

daughter. Pursuant to the registration of the FIR, the matter was investigated

and final report under Section 173 of Cr.P.C. was submitted. The petitioner

along with his brother were charge-sheeted to face trial for the aforesaid

offences. The prosecutrix was examined and thereafter an application was

submitted to recall the prosecutrix under section 311 Cr. P.C which

application was dismissed. Aggrieved, the instant petition has been filed.

3. Mr. Preetinder Ahluwalia learned counsel appearing on behalf

of the petitioner contends that the petitioner has been falsely implicated in

the instant case and that to establish the same it would be necessary to recall

the prosecutrix as the previous defence counsel did not confront her with

relevant questions. In the application filed, recalling of the witness was

sought on several grounds. It is vehemently argued that Section 311 Cr.P.C

permits recalling of witness at any stage if the evidence sought to be

produced would facilitate in arriving at the truth. It is also argued that

negligence of the defence counsel in putting relevant documents to the

witness is sufficient ground for the court below to allow the application.

Reliance is placed upon judgments rendered in Rajaram Prasad Yadav vs.

State of Bihar and another, 2013(3) RCR (Criminal) 726, P. Sanjeeva

Rao vs. State of A.P., 2012(3) RCR (Criminal) 653, Rajiv Sood vs. State

of Punjab, 2016(1) RCR (Criminal) 67.

4. Per contra Mr. Mohit Garg, learned counsel appearing on behalf

of the complainant submits that change of counsel is not a sufficient ground

to permit recalling of the witness and also that the petitioner has every

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opportunity of leading his own defence and the question sought to be posed

to the prosecutrix have also been answered by her in her cross-examination.

It is also submitted that the prosecutrix being a minor should not be

subjected to further cross-examination as she would be forced to relive the

horrific incident again. Reliance is placed upon a judgment rendered in S.

Sankara Varman vs. State represented by the Inspector of Police, 2016

(3) MLJ (Criminal) 764.

5. I have heard the counsel for the parties and with their assistance

have perused the pleading as and the case law cited.

6. 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
enquiry, 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.”

Section 311 Cr.P.C. permits a person to be summoned as a

witness at any stage of the trail or other proceedings. A reading of the above

section would show that the first part gives discretionary authority to the

court enabling it to exercise its powers at any stage of inquiry, trial or other

proceedings under the Code. It can summon any person as a witness,

examine any person in attendance, who may not even be summoned as

witness and can recall and re-examine any person already examined. The

Court is also competent to exercise such powers suo motu even if no such

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application has been filed. However, there are fetters on such power to recall

or allow examination of a witness, being that the Court must satisfy itself

that it essential to the just decision of the case.

7. The trial court, while dismissing the application, has observed

as under:

“Appreciating the contentions of the counsel for the
applicant/accused as well as the Ld. Addl. Public
Prosecutor for the state and having gone through the
record, it transpires that prosecutrix minor Manpreet Kaur
was cross examined on 23.12.2015 and sufficient
opportunity of cross-examining the said witness was given
to the accused. The accused is facing allegations u/s 4 of
Protection of Children from Sexual Offences Act, 2012. As
per Section 35 of the Protection of Children from Sexual
Offences Act, which prescribes the period for recording of
evidence of a child and disposal of the case; the evidence
of the child shall be recorded within a period of 30 days of
the special court taking cognizance of the offence and
reasons for delay if any shall be recorded by the special
court. Section 36 of the said Act provides in sub Section (1)
that the Special court shall ensure that the child is not
exposed in any way to the accused at the time of recording
of evidence and ensure that the accused is in a position to
hear the statement of the child and communicate with his
advocate. Thus, the testimony of the minor was concluded
after affording sufficient opportunities to the accused.

The trial is now near completion as the case is
now posted for recording the statement of the accused u/s
313 Cr.P.C. The affidavit which is sought to be put up to
the prosecutrix showing that no occurrence took place; has
been procured after her examination-in-chief was
concluded in this case. The documents i.e. FIR No.165 dt.
24.6.2015, proceedings u/s 107/151 Cr.P.C., and receipt
No.10918 dt. 28.6.2015 of Rs.1100/- pertains to the alleged
marriage of the prosecutrix and some enmity of the
accused with one Avtar Singh regarding which questions
were put to the prosecutrix in her cross-examination
already conducted. Otherwise these documents can be
proved through defence and they necessary need not be put
to the minor witness moreover they were available when
the witness/prosecutrix was cross-examined in the court
and sufficient opportunity was given and change of counsel
alone cannot give the accused a fresh right to recall the
witness. It would be pertinent to mention here that Section

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33 of Protection of Children from Sexual Offices Act
provides in Sub Section (5) that the Special court shall
ensure that the child is not called repeatedly to testify in
the court. Thus since sufficient opportunity has already
been granted for cross-examining the child witness, no
ground for allowing the application is made out.”

8. There are plethora of decisions, which are in favour of recalling

the witnesses under Section 311 Cr.P.C., whenever it appears that it is so

necessary for proper adjudication of the case, depending upon the facts and

circumstances of each case, with a rider that the evidence appears to be

essential for the said purpose. However, this power has to be exercised with

great care and caution. The documentary evidence by which the petitioner

seeks to confront the prosecutrix are, (i) FIR No 165 dated 26.6.2015 u/s

324 IPC, which is available on the record as Annexure P-5 which pertains to

injury suffered by Avtar Singh, a relative of the prosecutrix on 23.06.2015 at

the hands of petitioner, (ii) Annexure P-6, the Kalandra filed under Section

107/151 IPC against the petitioner, iii) Annexure P-7 is the report of the SSP

Sangrur dated 1.8.2015 on the complaint received by the police regarding

forcible marriage of the prosecutrix and investigation thereon, (iv) Annexure

P-8 the affidavit executed by the prosecutrix stating no wrong had been

committed by the petitioner-accused and that the statement given by her

alleging rape was given under pressure and lastly (v) with the receipt No.

10918 dated 28/06/2015 of the Gurudwara where her marriage was

solemnized.

9. In this case, the prosecutrix was examined by the trial court on

23.12.2015 whereas, the FIR No.165 was recorded on 24.06.2015 and the

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kalandra was recorded by the police on 29.06.2015 in which one Avtar

Singh is the complainant. Similarly, the report of the SSP, Sangrur is dated

01.08.2015 and the receipt of the Gurudwara is dated 28.06.2015. Thus, all

these documents were within the knowledge of the petitioner herein, while

cross-examining the prosecutrix. So far as the affidavit executed by the

prosecutrix is concerned, the same is dated 04.02.2016 i.e. later to the

examination of the prosecutrix before the trial court on 23.12.2015. The

receipt of the Gurudwara showing marriage was solemnized, was also in his

knowledge. A perusal of the application moved before the trial under

Section 311 Cr.P.C. shows that the sole ground taken for recalling the

witness is that the previous counsel could not cross-examine the witness qua

the aforesaid documents (except the alleged affidavit furnish by the

prosecutrix) whereas, the cross-examination of the prosecutrix shows that

questions regarding Avtar Singh as well as performing her marriage forcibly

were put to her by the defence counsel. So far as argument raised regarding

(in) competency of previous counsel in cross-examining the prosecutrix or

change of counsel is concerned, in State of Haryana Vs Ram Mehar and

Others, 2016(4) R.C.R (Criminal) 154, it has been held that mere change in

counsel would not bring the applicant/accused case within the purview of

Section 311 Cr.P.C. In the case of State (NCT of Delhi) vs. Shiv Kumar

Yadav, (2016) 2 Supreme Court Cases 402, the Apex Court has held that

recalling of witness cannot be allowed on a plea that the defence counsel

(previous) was not competent and had not effectively cross-examined the

witnesses. Under these circumstances, it cannot be said that these documents

are necessary for the just decision of the case.

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10. Even the case laws relied upon by learned counsel for the

petitioner are not applicable to the facts and circumstances of the present

case. In the case of Rajaram Prasad Yadav vs. State of Bihar and

another (supra) an application under Section 311 Cr.P.C. was moved by

the witness for his re-examination by alleging that on an earlier occasion he

had turned hostile as coercion and threat was meted out to him, but the said

application was dismissed by the trial court and the said order was

subsequently affirmed by the Apex Court. In the case of P. Sanjeeva Rao

vs. State of A.P. (supra), the application moved under Section 311 Cr.P.C.

for cross-examination of the witnesses PW1 and PW2 was dismissed by the

trial court and this order was affirmed in appeal by the High Court.

However, the Apex Court allowed the application, while considering the

fact that cross-examination of both these witnesses was recorded as “nil”

due to the error committed by the lawyer. In the case of Rajiv Sood vs.

State of Punjab (supra) the case pertains to offence under the Narcotic

Drugs and Psychotropic Substances Act, 1985, which contains stringent

provisions. The application moved by the accused therein under Section 311

Cr.P.C. for recalling PW5 Inspector for his further cross-examination was

dismissed by the trial court, whereas the High Court allowed the application

while taking note of the fact that the trial court did not appreciate the true

facts of the case as well as object and true import of Section 311 Cr.P.C.

whereas in the case in hand, it is not so. As such, case law as cited are not

applicable to the facts and circumstances of the present case.

9. The petitioner herein has been charged inter alia with the

offences Section 376 IPC and Section 4 of POCSO Act with the allegation

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of committing the rape of the minor prosecutrix. In case, he wants to

produce these documents on the record in support of his defence, he can do

so. Most of them are official/semi-official documents (other than the

affidavit). Moreover, Section 33(5) of the POCSO Act mandates that the

Special Court shall ensure that the child is not called repeatedly to testify in

the Court. Under these circumstances, this court has no hesitation in

holding that the trial court has rightly dismissed the application. There is no

infirmity in the order of the court below to warrant interference.

10. In view of the above, the petition in hand is hereby dismissed,

being devoid of any merits.

(JAISHREE THAKUR)
December 19, 2018 JUDGE
vijay saini

Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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