Sikha Rani Das vs State Of Tripura And Ors

[1] Heard Mr. K. Nath, learned counsel appearing for the petitioner as well as Mr. S. Ghosh, learned Addl. P.P. appearing for the respondent No.1 and Mr. R. Datta, learned counsel appearing for the respondent No.2.

[2] A regular trial has commenced to try the respondent No.2 on the charge for commission of offence punishable under Section 354/326 of the IPC.

[3] The investigation was initiated on the basis of a complaint filed on 21.03.2013 revealing that the victim, the petitioner herein, was assaulted by the respondent No.2. Based on the said complaint, Amtali P.S. Case No.61/2013 under Section 354/326 of the IPC was registered to investigate. The investigation culminated into filing of the charge sheet.

[4] The Sub-Divisional Judicial Magistrate, hereinafter referred to as the trial court on 18.03.2016 framed the charge under Section 354/323 of the IPC, to which the respondent No.2 pleaded not guilty.

[5] There is no dispute that the prosecution witnesses (PWs 1 to 4), were examined and cross examined on 20.03.2017 and 21.03.2017. The case was fixed on 22.03.2017 for examination of the other witnesses but no witness could be examined as summons were not served on that day. On 23.03.2017 the case was adjourned and the next date was fixed for examination of few more witnesses.

[6] It appears further from the records that, the trial court summoned PWs 3, 4 and 7 for examination 19.07.2017. Later on, two other days were fixed for same purpose in respect of examination of other witnesses. Several dates were fixed but no meaningful progress in examination of the witnesses could be made.

[7] On 01.08.2018 one witness only turned up, even though the summons were issued on the witnesses No.3 and 4 properly, but they were not available in the court.

[8] On 12.04.2019, the respondent No.2, the accused filed an application under Section 311 of the Cr.P.C. for recalling PWs1, 2, 3 and 4 for further cross-examination. Purpose of such cross-examination has been provided in Para-2 of the said petition. In Para-2, it has been asserted that, at the time of cross-examination, contradiction and omissions were not marked by the engaged counsel due to inadvertence. To being those omission or contraction to essentially required, else the respondent No.2 will be prejudiced in his defence.

[9] After hearing, by the impugned order dated 08.07.2019 the trial court allowed the said petition under Section 311 of the Cr.P.C. and PWs 1, 2, 3 and 4 were called for purpose of cross-examination in terms of the petition dated 12.04.2019. Accordingly, the day i.e. 30.10.2019 was fixed for cross-examination.

[10] This order 08.07.2019 has been challenged by the petitioner, the complainant by filing this petition under Section 397 (1) read with 401 of the Cr.P.C.

[11] Mr. K. Nath, learned counsel appearing for the petitioner has submitted that such order will allow the accused person to take undue advantage. In support of his contention, he has relied a decision of apex court in the State of Haryana Vs. Ram Mehar and Others reported in (2016) 8 SCC 762. In Ram Mehar (supra) the apex court having appreciated the precedents on principle on that aspect, particularly about the court's extent of excising discretionary power under Section 311 of the Cr.P.C. It has been observed there as under:

"17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.

17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.

17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.

17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.

17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right." [Emphasis added]

[12] In this regard, a decision of the apex court in State (NCT of Delhi) Vs. Shiv Kumar Yadav And Another reported in (2016) 2 SCC 402 may be referred. In Shiv Kumar Yadav (supra) it has been observed by the apex court that while advancement of justice remains the prime object of law, it cannot be understood that the recall can be allowed on the asking or assigning reasons relating to convenience. It is normally to be presumed that, the counsel conducting a case is competent, particularly when a counsel is appointed by the trial. Taken this to its logical end, the principal that a retrial must follow on every change of a counsel can have a serious consequence on conduct of trials and the criminal justice system. The witness cannot be expected to face the hardship of appearing the court repeatedly particularly in the sensitive cases. It can result in undue hardship for the victim specially so of heinous crimes, if they were required to repeatedly appear in court to face the cross-examination.

[13] Mr. Nath, learned counsel has stated that not only the harassment to the witnesses, but undue advantage will be taken by the accused, the respondent No.2 herein if the impugned order is not interfered with.

[14] Mr. R. Datta, learned counsel appearing for the respondent No.2 has submitted that, unless the contradiction or the omission is recorded properly, which have not been recorded, the petitioner will suffer, serious prejudice and his right of defence will be jeopardised. However, the State has not raised any objection while this court asked Mr. Ghosh, learned Addl. P.P. whether he has any oppositions to the order. He has submitted that he does not have. The question therefore arises whether it should be the general rule that if some omissions do surface while recording the evidence and in those were not marked in accordance with rule, the defence can have the opportunity to recall the witnesses. Generally, the answer will be no, but when for advancement of the justice, it would appear to the court, that if such opportunity is given to the accused person, there will be survived prejudice the trial court can exercise its discretion is under Section 311 of the Cr.P.C. In this case, the ground for such recall as assigned is that, the omission or contradiction were not properly recorded but in the application after due scrutiny it could not be found what kind of omissions or contradictions, the counsel of the accused persons could not mark at the time of recording. Even the trial court did not reflect any reason how accused will be prejudiced, if recall is denied. Such order cannot be sustained. It is the duty of the prosecution of the defence to lay the omissions or contradictions those could not be marked during the examination and the cross-examination in the petition asking recall under Section 311 of the Cr.P.C. It will be further duty to lay down the probable questions that would be made on recall. No such particulars are available in the petition filed by the respondent No.2. Accordingly, the same interfered with and quashed.

[15] The trial court is directed to proceed with the trial without further delay. For this no time frame is given by the court but it is observed that the court has slowed down the recording of evidence.

[16] For substantive ends of justice and as this court is not in a position to appreciate the element of prejudice, the petitioner is given liberty to file a fresh petition showing the kind of contradiction and omission he intends to bring on record. In that event, the trial court may reopen for fresh decision.

In the result, this petition is allowed.