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Shabbir Ahmad Laway @ Shabbir Kala vs Central Bureau Of Investigation, … on 16 May, 2018

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

1. CRM-M No.3659 of 2018
Date of Decision: May 16th, 2018

Shabbir Ahmad Laway @ Shabbir Kala
…Petitioner
Versus

Central Bureau of Investigation, Chandigarh
…Respondent

2. CRM-M No.6218 of 2018

Mohammad Ashraf Mir and others
…Petitioners
Versus

Central Bureau of Investigation, Chandigarh
…Respondent

3. CRM-M No.5412 of 2018

Y (name withheld)-prosecutrix
…Petitioner
Versus

Central Bureau of Investigation, Chandigarh
…Respondent

CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH

Present: Mr. Karambir Singh Nalwa, Advocate
for the petitioner(s) (in CRM-M Nos.3659 and 6218 of 2018).

Mr. Rajat Khanna, Advocate
for the petitioner (in CRM-M No.5412 of 2018).

Mr. Sumeet Goel, Advocate
for CBI.

AUGUSTINE GEORGE MASIH, J.

By this order, I propose to decide three petitions preferred

under Section 482 Cr.P.C. which were taken up for hearing together at the

request of counsel for the parties as they arise out of the same trial but

challenging two different orders.

2. In CRM-M No.3659 of 2018 titled as Shabbir Ahmad Laway @

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Shabbir Kala Verus Central Bureau of Investigation, Chandigarh and

CRM-M No.6218 of 2018 titled as Mohammad Ashraf Mir and others

Versus Central Bureau of Investigation, Chandigarh, challenge is to the

order dated 17.01.2018 passed by the learned Special Judge, CBI Court,

Chandigarh, whereby application dated 15.01.2018 preferred by the

petitioners under Section 311 Cr.P.C. for recall of PW-1 Y (name withheld)-

prosecutrix, for further examination, stands dismissed.

3. In CRM-M No.5412 of 2018 titled as Y (name withheld)-

prosecutrix Versus Central Bureau of Investigation, Chandigarh, challenge

has been posed by the petitioner-prosecutrix to the order dated 25.02.2016

passed by the learned Special Judge, CBI Court, Chandigarh, dismissing her

application requesting for her re-examination sent through post which was

received in the Court on 30.10.2015.

4. This Court would first proceed to decide two petitions, where

the challenge is to the order dated 17.01.2018 i.e. CRM-M No.3659 of 2018

titled as Shabbir Ahmad Laway @ Shabbir Kala Verus Central Bureau of

Investigation, Chandigarh and CRM-M No.6218 of 2018 titled as

Mohammad Ashraf Mir and others Versus Central Bureau of Investigation,

Chandigarh.

5. Briefly the facts are that FIR No.20/2006 dated 14.03.2006

was registered at Police Station Shaheed Gang, Srinagar, under Section 67

of the Information Technology Act, 2000. Statement of the prosecutrix was

recorded on March 15th/16th, 2006, followed by supplementary statement on

04.05.2006. Thereafter a Notification was issued by the

Government of India on 09.05.2006 entrusting the investigation of the case

to the Central Bureau of Investigation (hereinafter referred to as ‘CBI’).

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On 10.05.2006, CBI registered RC No.1(S)/2006/SCR-III/New Delhi, under

Section 67 of Information Technology Act, 2000, Sections 3, 4, 5, 6, 7 of

Immoral Traffic (Prevention) Act, 1956 and Sections 376, 292, 34

Ranbir Penal Code.

6. Special leave petition was preferred by CBI before the

Hon’ble Supreme Court praying for transfer of the trial outside the State of

Jammu and Kashmir, which petition was allowed and the trial was

transferred to the Court of District and Sessions Judge, Chandigarh.

Charge-sheet was filed against the petitioners and thereafter the trial

proceeded. Prosecutrix appeared before the trial Court and was examined as

PW-1 on 07.04.2007 and thereafter cross-examined on 24.04.2007,

25.04.2007, 26.04.2007 and 27.04.2007.

7. An application under Section 311 Cr.P.C was filed by one of

the co-accused namely K.C. Padhi on 19.12.2012 followed by another

application dated 05.04.2013 filed by another co-accused namely

Mohammad Ashraf Mir for recalling PW-1 (prosecutrix) for re-examination

as the prosecution had given up mother-Rafeeqa and husband-

Irfaan Ahmad Khan of the prosecutrix as witnesses. These applications were

considered by the learned Special Judge and dismissed by order dated

22.01.2014. The said order was challenged by K.C. Padhi only in

CRM-M No.27028 of 2014 titled as K.C. Padhi Versus State through

Central Bureau of Investigation (CBI), Sector 30, Chandigarh, which was

dismissed by this Court vide order dated 28.03.2017.

Mohammad Ashraf Mir did not challenge the order dated 22.01.2014 passed

by the trail Court rejecting his application.

8. An application purported to be sent through post by PW-1

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(prosecutrix) was received by the trial Court on 30.10.2015, wherein it was

stated that the prosecutrix had given her statement in Court earlier under

pressure and threat of CBI and, therefore, prayed that she be re-examined in

the case. The Special Judge, CBI Court, Chandigarh, considered the said

letter as an application and called upon the CBI to verify as to whether the

said application has been submitted by the prosecutrix or not?

After verification, CBI filed a reply that the prosecutrix had denied having

written the said letter as well as the signatures being her’s thereon.

The Court considered the same and dismissed it vide order

dated 25.02.2016, which remained unchallenged till the filing of

CRM-M-5412 of 2018 on 07.02.2018, which has now been preferred by the

prosecutrix after a delay of two years.

9. On 16.11.2017, mother of the prosecutrix namely Rafeeqa

appeared as DW-5 and got recorded her statement where she asserted that

PW-1 (prosecutrix) was in the custody of CBI for about 1½ years in relation

to this case and was not allowed to meet anyone. Husband of the prosecutrix

Irfaan Ahman Khan appeared on 12.12.2017 as DW-7 and also asserted the

same.

10. After the recording of the statements of these two witnesses,

initially an application dated 15.01.2018 under Section 311 Cr.P.C. by five

accused namely Anil Sethi, Mohammad Ashraf Mir, Shabir Ahmad Laway,

Shabir Ahmad Langu and Maksur Ahmad for recalling PW-1 (prosecutrix)

for further examination, was filed before Special Judge, CBI Court,

Chandigarh.

11. The ground laid out for recall of PW-1 (prosecutrix) for further

examination has been asserted to be the statement of the defence witnesses

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Rafeeqa DW-5 and Irfaan Ahmad Khan DW-7, who had deposed that the

prosecutrix was never sexually exploited by any of the accused as claimed

by CBI and that she was major at the time when her marriage was

solemnised with DW-7 Irfaan Ahmad Khan on 15.05.2004, whereas the

alleged incidence is of the year 2006. What is being sought to be asserted is

that PW-1 (prosecutrix) was major at the time when the incident had taken

place and when the FIR in question was registered against the petitioners.

Reliance has also been placed upon the letter which is asserted to be written

by Y-the prosecutrix which has been received by the trial Court on

30.10.2015, wherein request had been made that she be allowed to be

re-examined as her deposition before the Court was under constant pressure

and threat of CBI. It was stated that since new facts have surfaced on the

judicial file on account of deposition of the defence witnesses DW-5 and

DW-7, referred to above, recalling of PW-1 (prosecutrix) has been

necessitated for the just and fair decision of the case. No prejudice would be

caused to the prosecution nor would it, in any manner, amount to filling the

lacuna in the evidence of the defence, rather it would enable the Court to

reach a just decision in the case.

12. The application moved by the accused was contested by the

prosecution by taking the plea that the earlier applications moved by two of

the accused under Section 311 Cr.P.C. for recalling PW-1 (prosecutrix)

stood dismissed by the Court and the challenge thereto by one of the

accused has also been rejected by the High Court and, therefore, the present

application is not maintainable. Factum of non-disclosure by

Mohammad Ashraf Mir that he had earlier filed an application under

Section 311 Cr.P.C., which has been dismissed by the trial Court amounts to

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approaching the Court with unclean hands. As regards the age of the

prosecutrix is concerned, it is asserted that PW-1 had been cross-examined

in detail and so also PW-12, who was the principal of the school, who has

proved the date of birth of the prosecutrix on the basis of records. As

regards the alleged application of the prosecutrix, which was received

through post on 30.10.2015 mark DX, the said application stands dismissed

by order dated 25.02.2016 and there is no challenge thereto. Recall of PW-1

(prosecutrix) would amount to de novo trial which would not only prejudice

the prosecution but would further delay the trial as the case is fixed for

arguments and the present application has been filed only to delay the trial

and avoid decision on merits of the case.

13. On 17.01.2018, when the application under Section 311 Cr.P.C.

was taken up for hearing but prior to the arguments, one of the applicants-

accused namely Anil Sethi made a statement in Court and requested for

dropping his name from the application, which was accepted. The Court

proceeded to dismiss the said application after arguments of the remaining

four applicants by order dated 17.01.2018, which has been impugned in

these two petitions.

14. It is the contention of learned counsel for the petitioners that

the present application under Section 311 Cr.P.C. is maintainable as there is

no bar as such for moving another application under Section 311 Cr.P.C.

when an earlier application has been dismissed, especially with the new

facts emerging during trial. In any case, except for Mohammad Ashraf Mir

(petitioner No.1 in CRM-M No.6218 of 2018), none of the petitioners had

earlier filed any application under Section 311 Cr.P.C. It is asserted that

DW-5 and DW-7, who are mother and husband of PW-1 (prosectrix)

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respectively, have stated in their deposition in Court that the prosecutrix

was never sexually exploited at any point of time and in any case, she was

major when the alleged incidence is stated to have taken place resulting in

the registration of the FIR and, therefore, necessity for moving an

application under Section 311 Cr.P.C. was felt by the petitioners.

Further, the prosecutrix was under pressure of CBI being in its captivity

when she gave her statement in Court and she wanted to now truthfully

depose in the Court and for that, she had sent a letter through post which

was received on 30.10.2015 (mark DX) making allegations therein against

CBI that she was forced, pressurised and put under threat to depose in a

particular manner. Counsel have taken me through the statements of the

prosecutrix as also the defence witnesses, referred to above, apart from mark

DX. He, with reference to mark DX, asserts that the principles of natural

justice have not been followed and adhered to by the trial Court while

considering the said application which was received through post.

Elaborating this, his submission is that the allegations were against the CBI

and it was the same agency which was called upon by the Court to respond

thereto, thus, the Court has not properly appreciated the importance of the

said document and has brushed it aside without giving it a serious thought.

Reliance has been placed upon judgments of Hon’ble Supreme Court in

Uma Nath Pandey and others Versus State of Uttar Pradesh and another

(2009) 12 Supreme Court Cases 40, A.U. Kureshi Versus High Court of

Gujarat Anr. 2009 (11) SCC 84, Mohd. Yunus Khan Versus State of U.P.

and others 2010 (10) SCC 539, Kumaon Mandal Vikas Nigam Ltd. Versus

Girja Shankar Pant 2001 (1) SCC 182 to explain the principle of natural

justice.

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15. Counsel for the petitioners submits that the Court should have

exercised its powers under Section 311 Cr.P.C. while giving an opportunity

to the accused to substantiate their assertions. Referring to the provisions of

Section 311 Cr.P.C., he has asserted that the Court has wide powers and

when any of the parties has projected a point with regard to there being a

situation where recall of the prosecutrix has become essential for the correct

decision of the case, the Court should have allowed the same.

His submission is that fair trial has been a casuality and the Court has

merely proceeded on presumptions and assumptions. Asserting his

submissions and supporting the same with reference to Section 311 Cr.P.C.

and the judgments of various Courts, he submits that present petition

deserves to be allowed and the learned trial Court has failed to exercise its

powers as it has not been able to appreciate the true ambit of the Section.

In support of these contentions, he has placed reliance upon the following

judgments:-

(i) State Delhi Administration Versus Ramesh Kumar 1990

Rajdhani LR 177

(ii) Jeo Mirza Versus State of Punjab 1995(3) R.C.R. (Criminal) 26

(iii) Sharawan Singh Versus State of Rajasthan 2005(2) Cri.CC 755

(iv) Himanshu Singh Sabharwal Versus State of M.P. and Ors.

2008(2) R.C.R. (Criminal) 267

(v) Khushwinder Singh and another Versus State of Punjab 2007

(1) R.C.R. (Criminal) 531

16. On the other hand, learned counsel for respondent-CBI has

supported the impugned order passed by the learned Special Judge, CBI

Court, Chandigarh, by reiterating the reasons, as have been assigned by the

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trial Court. He has pressed into service the factual aspect and the

circumstances through which the case has developed and proceeded.

Contradicting the arguments of the counsel for the petitioners, he contends

that the prosecutrix was not in custody of CBI, rather she was in protective

custody and that too in compliance with the orders passed by the Court for

the reason that her life was under threat. CBI has only complied with the

orders passed by the Court. Allegations, as have been made with regard to

tutoring, pressurising and threatening the prosecutrix, have been assertively

denied. He has referred to the cross-examination of the prosecutrix to

support his submissions. As regards the application mark DX, his stand is

that the same is neither signed by the prosecutrix nor has it been written by

her. Statement of the prosecutrix was recorded voluntarily in camera

proceedings. Evidence of PW-1 (prosecutrix) stood concluded on

27.04.2007 and the alleged application/letter was received through post by

the Court on 30.10.2015, which is after a lapse of seven years. Had there

been actual threat or pressure given by CBI to the prosecutrix, there was no

reason why she would not have come forth and stated so. The said

application stood dismissed by the trial Court on 25.02.2016 and the said

order stands. It is now that the said order is being sought to be challenged

after a period of two years and that too when the case is ripe for final

decision. Consolidating the apprehensions for which the prosecutrix was

being given protection by the Court and the same are coming true with the

accused putting pressure on the prosecutrix. Prayer has thus been made for

dismissal of the petitions as the trial Court has rightly exercised its powers

under the statute.

17. I have considered the submissions made by the counsel for the

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parties and having gone through the pleadings, the documents on record and

as referred to during arguments as also the judgments on which reliance has

been placed but do not find myself in agreement with the submissions of the

counsel for the petitioners.

18. No doubt, under the Code of Criminal Procedure, there are

wide powers conferred upon the Court when it comes to summoning any

person as a witness and this Court had an occasion to delve into the said

aspect with reference to Section 311 Cr.P.C. while considering

Criminal Revision No.3592 of 2017 titled as Khatta Singh Versus

Central Bureau of Investigation, Chandigarh and others, decided on

23.04.2018, where it was held as follows:-

“To understand the powers, which have been given to
the trial Court under the Statute, reference to the provision
itself would be essential. Section 311 Cr. P.C. reads as
follows:-

“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.”

A reading of the above Section would show that there
are two parts in it. The first part is primarily permissive one,
which 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 a witness and can recall and re-examine any
person already examined. This power could be put into
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service at a stage when the parties have after leading their
evidence closed the same and even when they had concluded
their final arguments, meaning thereby that the discretion of
the Court can be exercised any time prior to the
pronouncement of the judgment. This is because in the first
part, the word used is ‘may’. However, while exercising that
discretionary powers under the first part, the second part
mandates and imposes an obligation on the Court either to
summon, examine or recall or re-examine any person, if, in
the opinion of the Court, evidence of such person appears to
be essential to the just decision of the case but this power also
is to be exercised prior to the final pronouncement of the
judgment. More the discretion given to the Court, more
discipline and circumspection is required to be exercised by
the Court while invoking such powers and should be in
consonance with the provisions of the Statute.

Hon’ble Supreme Court, in the judgment of Mohanlal
Shamji Soni’ case (supra), on which reliance has been placed
by both the parties, has, in paras 9, 10 and 18 while dealing
with the powers of the Court under Section 311 Cr. P.C.,
observed as follows:-

“9. The very usage of the words such as ‘any court’, ‘at
any stage’, or ‘of any enquiry, trial or other
proceedings’, ‘any person’ and ‘any such person’
clearly spells out that this section is expressed in the
widest possible terms and do not limit the discretion of
the Court in any way. However, the very width
requires a corresponding caution that the
discretionary power should be invoked as the
exigencies of justice require and exercised judicially
with circumspection and consistently with the
provisions of the Code. The second part of the Section
does not allow for any discretion but it binds and
compels the Court to take any of the aforementioned
two steps if the fresh evidence to be obtained is
essential to the just decision of the case.

10. It is a cardinal rule in the law of evidence that the
best available evidence should be brought before the
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Court to prove a fact or the points in issue. But it is left
either for the prosecution or for the defence to
establish its respective case by adducing the best
available evidence and the Court is not empowered
under the provisions of the Code to compel either the
prosecution or the defence to examine any particular
witness or witnesses on their sides. Nonetheless if
either of the parties with-holds any evidence which
could be produced and which, if produced, be
unfavorable to the party withholding such evidence,
the court can draw a presumption under illustration

(g) to Section 114 of the Evidence Act. In such a
situation a question that arises for consideration is
whether the presiding officer of a Court should simply
sit as a mere umpire at a contest between two parties
and declare at the end of combat who has won and
who has lost or is there not any legal duty of his own,
independent of the parties, to take an active role in the
proceedings in finding the truth and administering
justice? It is a well accepted and settled principle that
a Court must discharge its statutory functions-whether
discretionary or obligatory-according to law in
dispensing justice because it is the duty of a Court not
only to do justice but also to ensure that justice is
being done. In order to enable the Court to find out the
truth and render a just decision, the salutary
provisions of Section 540 of the Code (Section 311 of
the New Code) are enacted whereunder any Court by
exercising its discretionary authority at any stage of
enquiry, trial or other proceeding can summon any
person as a witness or examine any person in
attendance though not summoned as a witness or
recall or reexamine any person in attendance though
not summoned as a witness or recall and re-examine
any person already examined who are expected to be
able to throw light upon the matter in dispute; because
if judgments happen to be rendered on inchoate,
inconclusive and speculative presentation of facts, the
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ends of justice would be defeated.

xxx xxx xxx xxx xxx

18. The next important question is whether Section 540
gives the court carte-blanche drawing no underlying
principle in the exercise of the extra-ordinary power
and whether the said Section is unguided, uncontrolled
and uncanalised. Though Section 540 (Section 311 of
the new Code) is, in the widest possible terms and calls
for no limitation, either with regard to the stage at
which the powers of the court should be exercised, or
with regard to the manner in which they should be
exercised, that power is circumscribed by the principle
that underlines Section 540, namely, evidence to be
obtained should appear to the court essential to a just
decision of the case by getting at the truth by all lawful
means. Therefore, it should be borne in mind that the
aid of the section should be invoked only with the
object of discovering relevant facts or obtaining
proper proof of such facts for a just decision of the
case and it must be used judicially and not
capriciously or arbitrarily because any improper or
capricious exercise of the power may lead to
undesirable results. Further it is incumbent that due
care should be taken by the court while exercising the
power under this section and it should not be used for
filling up the lacuna left by the prosecution or by the
defence or to the disadvantage of the accused or the
cause serious prejudice to the defence of the accused
or to give an unfair advantage to the rival side and
further the additional evidence should not be received
as a disguise for a retrial or to change the nature of
the case against either of the parties.”

The Court has further proceeded to refer to various
judgments and summed up the principle in para-27 as
follows:-

“27. The principle of law that emerges from the views
expressed by this court in the above decisions is that
the Criminal Court has ample power to summon any
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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, and fair-play and good
sense appear to be the only safe guides and that only
the requirements of justice command the examination
of any person which would depend on the facts and
circumstances of each case.”

It would not be out of way to mention here that the
Hon’ble Supreme Court has, relying upon the judgment in
Rameshwar Dayal vs. State of U.P., 1978 (2) SCC 518,
concluded that where any fresh evidence is admitted against
the accused, the accused should be given an opportunity to
rebut that evidence as this right is engraved in the principles
of natural justice as the Statute has armed the Court with all
the powers to do full justice between the parties which cannot
be done until both the parties are properly heard. Maxim of
audi alteram partem was sought to be engraved and inherent
in the provisions contained under new Section 311 Cr. P.C.
These principles have been reiterated in all subsequent
judgments, which have been passed by the Supreme Court
and the various High Courts, of course, applying those
principles on the given facts and circumstances of each case.

It would not be out of way to mention here that the
Hon’ble Supreme Court, in the case of Zahira Habibulla H.
Sheikh and another vs. State of Gujarat and others, 2004 (2)
RCR (Criminal) 836 in para-46 thereof, has observed that it
is a bounden duty of the Court to arrive at the truth and sub-
serve the ends of justice. Observing with caution that Section
311 of the Code does not confer any party any right to
examine, crossexamine and re-examine any witness and this
power is only given to the Court which is required to exercise
the same not merely at the bidding of any party or person but
is a power conferred and discretion vested in the Court so as
to prevent any irretrievable or immeasurable damage to the
cause of society, public interest and miscarriage of justice.
Recourse may be had by the Courts to power under this
Section only for the purpose of discovering relevant facts or
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obtaining proper proof of such facts as are necessary to
arrive at a just decision in the case.

It is, thus, the bounden duty of the Court to step in by
enforcing law so as to see that the truth does not become a
casualty at the hands of procedures, which are being sought
to be projected in the form of fetters, in exercise of
discretionary powers of the Court. However, this power has
to be exercised with great care and caution.

It can, thus, be concluded that the broad principles are
laid down under the Statute itself which has further been
elaborated and explained by the Courts in various judgments
with the cardinal rule being that these principles would be
applied uniformly depending upon the facts and
circumstances of each case. No general principle or rule can
be laid down in exercise of such discretionary powers of the
Court except that the only guide for the Court would be the
object of arriving at a just decision of a case with a further
rider that the evidence appears to be essential for the said
purpose. In case a decision is reached by the Court that the
evidence is essential for the just decision of the case, then the
Court is bound to summon and examine or recall and re-
examine any such person whether he is a witness or not and
has been examined earlier or not and examine or recall any
person including a person who is in attendance.”

19. With the principles referred to above in mind, the facts and

circumstances in the present case have to be now looked into to decide the

plea of the petitioners with reference to the application which they have

moved under Section 311 Cr.P.C.

20. The aspects which have been pressed into service by the

petitioners for asserting that application under Section 311 Cr.P.C. for recall

of PW-1 (prosecutrix) would be essential is the change of circumstances and

new facts having coming to light in the light of the evidence of DW-5

Rafeeqa and DW-7 Irfaan Ahmad Khan, who are mother and husband of

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PW-1 (prosecutrix) respectively. What has been asserted is that in their

statements, they are alleging PW-1 (prosecutrix) to be a major at the time of

commission of offence and that she has never been sexually exploited.

Without delving into details of facts lest it may prejudice the rights of

parties, suffice it to say that these would not be new facts which have come

to light requiring recall of prosecutrix as this was always the stand taken by

the accused in their defence.

21. The second aspect which has been highlighted is that PW-1

(prosecutrix) was in captivity and custody of CBI prior and during

examination in Court and thus her evidence being under threat, pressure and

influence of CBI requires to be re-looked for the reason that the two above

referred to witnesses i.e. DW-5 and DW-7 have so stated in Court, specially

when seen in conjunction with the letter received through post by the CBI

Court on 30.10.2015 mark DX, where she is alleged to have shown

inclination to depose afresh again, cannot be accepted as the said aspect has

been thoroughly pressed into service by the accused when she was

cross-examined.

22. That apart, letter mark DX was treated as an application which

was duly considered and reasoned order dated 25.02.2016 passed by the

trial Court rejecting the authenticity thereof. There was no challenge to the

said order from any quarter for two years till the filing of

CRM-M No.5412 of 2018 and that too on 07.02.2018 which is after the

dismissal of the application of the accused filed under Section 311 Cr.P.C.

by the trial Court by order dated 17.01.2018 and after a challenge thereto on

24.01.2018 in CRM-M No.3659 of 2018 before this Court. The accused

were well aware of this decision by the trial Court. This Court would not

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like to further delve into this issue lest any observations made herein may

not be taken as opinion on merits which may affect the independent decision

of the trial Court in any manner.

23. Independent of the fact of dismissal of the application mark DX

by the trial Court, in para 18 of the impugned order dated 17.01.2018,

zimni order dated 07.04.2007 has been reproduced which was passed prior

to examination of the prosecutrix in Court where she had categorically

denied a suggestion of threat and pressure at the hands of CBI and had

further said that she is in protective custody of Chandigarh Police and no

CBI Officer is meeting her when it was pointed out and a request was made

by the counsel for defence that she be not kept under the protective custody

of CBI lest it would prejudice the accused in their cross-examination and to

avoid tutoring by CBI. The Court, despite the statement, as above, of the

prosecutrix, proceeded to order that she be continued in protective custody

of Chandigarh Police till the recording of her statement is complete and the

CBI officers should not attempt to contact her till her examination is over.

This, in itself, is a complete answer to the argument of the counsel for the

petitioner. The trial Court had taken extra care and caution to ensure that

even apprehensions of the accused are dispelled what to say of actual

prejudice. It is worth mentioning here that the prosecutrix was cross-

examined for the first time after passing of the order dated 07.04.2007 on

24.04.2007 and thereafter on 25th, 26th and 27th April, 2007. The plea thus

now being sought to be put forth by the petitioners with reference to the

prosecutrix being in custody of CBI cannot be accepted, rather the same is

not at all tenable.

24. None of the pleas, as have been put forth and projected by the

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petitioners, carry any weight and the same appears to be a last ditch attempt

on their part to delay the culmination of the proceedings.

The impugned order dated 17.01.2018, as passed by the learned

Special Judge, CBI Court, Chandigarh, being based upon proper

appreciation of the facts and circumstances of the case and in accordance

with law, do not call for any interference by this Court. Therefore, these two

petitions i.e. CRM-M No.3659 of 2018 and CRM-M No.6218 of 2018

deserve dismissal while upholding the impugned order.

25. Now moving on to CRM-M No.5412 of 2018 titled as

Y-prosecutrix Versus Central Bureau of Investigation, Chandigarh, where

the challenge is to the order dated 25.02.2016 (Annexure P-2) by which the

learned Special Judge, CBI Court, Chandigarh, had dismissed the alleged

application of the petitioner-victim which was received through post on

30.10.2015, where she is alleged to have asserted that the statement which

she had given in the Court, was under threat and pressure of CBI and that

she wanted to give a fresh statement in Court, there is an inordinate and

unexplained delay of almost two years on the part of the petitioner in

approaching this Court.

26. Facts in brief of the case have been given in para 5 to 11 of the

order above and are not being repeated herein but for decision of this

petition, few dates require to be mentioned. Examination of the prosecutrix

concluded on 27.04.2007 and thereafter she was no more in the protective

custody of the Chandigarh Police as per zimni order dated 07.04.2007

referred to above of the trial Court. Application under Section 311 Cr.P.C.

was filed by K.C. Padhi on 19.12.2012 and another by

Mohammad Ashraf Mir on 05.04.2013 for re-examination of the prosecutrix

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CRM-M Nos.3659, 6218 and 5412 of 2018 19

PW-1-petitioner herein. These applications were dismissed on 22.01.2014

by Special Judge. It was more than one year nine months thereafter that an

alleged letter (mark DX) by post was received by the trial Court on

30.10.2015 purported to be of the petitioner which is after a period of seven

years of her having deposed in Court and being no more in protective

custody since then.

27. For the sake of reference to facts, it may be mentioned here that

the Hon’ble Supreme Court transferred the trial out of

Jammu and Kashmir State because of certain factors including the fact that

accused in this case were not only rich and influential persons but included

high ranking Officers also, apprehensions were expressed and it was

because of these reasons that the Court proceeded to order the prosecutrix to

be kept under protective custody. Rest of the sequence of events as

enumerated in the earlier part of this order speak for themselves culminating

in passing of the order dated 17.01.2018 by the trial Court rejecting another

application under Section 311 Cr.P.C. for recall of the prosecutrix

28. It is now that a challenge to the order dated 25.02.2016 has

been posed through this petition. At the cost of repetition it is stated that the

present petition has been filed on 07.02.2018 after a period of a few days

short of two years after the passing of the impugned order on 25.02.2016

(Annexure P-2) and that too only after the dismissal of an application under

Section 311 Cr.P.C. filed by the accused vide order dated 17.01.2018 passed

by the Special Judge, CBI Court, Chandigarh, which stood challenged in

this Court by filing CRM-M No.3659 of 2018 on 24.01.2018. This shows

that this petition has been filed later in time. It cannot be accepted that the

petitioner was not aware of the order dated 25.02.2016, especially in the

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light of the admitted relationship of the petitioner with the witnesses, who

had appeared as defence witnesses (as mentioned in the earlier part of the

order). This petition cannot be said to have been moved bonafidely.

29. This Court in the facts and circumstances of the present case

would not like to comment further for the reason that final judgment has to

be passed by the trial Court, lest it prejudices parties in any manner.

30. The present petition, therefore, deserves dismissal.

31. In view of the above, all the above three petitions stand

dismissed.

32. Any observation made hereinabove shall have no effect or

bearing on the merits of the case pending before the trial Court in any

manner.

May 16th, 2018 (AUGUSTINE GEORGE MASIH)
Puneet JUDGE

Whether speaking/reasoned: Yes/No

Whether Reportable: Yes/No

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