Raj Kumar v. State of Delhi and Anr.

1. Allowed, subject to all just exceptions.

2. Application stands disposed of. CRL.M.A. 44/2023 (for delay)

3. For the reasons stated in the application, the delay of 60 days in fling is condoned.

4. Application stands disposed of. CRL.REV.P. 5/2023

5. The instant revision petition under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”) has been filed by the petitioner against the order dated 26.07.2022 passed by learned ASJ, Central District, Tis Hazari Courts, Delhi whereby the learned Trial Court had rejected an application filed under Section 311 of Cr.P.C. for recalling of PW-3/prosecutrix for re-crossexamination in a case FIR bearing no. 90/2019, registered at Police Station I.P. Estate, Central District, Delhi for the offences punishable under Sections 328/376/354D/506/34/376D of the Indian Penal Code, 1860 (“IPC”).

6. Issue notice. Mr. Naresh Kumar Chahar, learned APP for the State accepts notice.

7. Brief facts of present case, as per the material on record, are that the complainant is a student of Mata Sundari College, Delhi and on the pretext of giving notes of B.Com Second year, the accused, who is serving as a security guard in the college on a contractual basis, took the complainant/prosecutrix to sports complex and forced himself upon the prosecutrix and committed rape upon her. Further, it is alleged by the complainant that she was threatened to be killed by elder brother, parents, three friends and an uncle of the petitioner. Initially an FIR bearing no. 90/2019 was registered against the accused for the offences punishable under Sections 376/328/506/34 and later Sections 354D/376D were added based on the complaint.

8. Learned counsel appearing for petitioner states that the applicant is in judicial custody since 08.05.2019. It is further stated by the learned counsel for the applicant that previous counsel of the applicant could not cross-examine the prosecutrix to the extent of confronting her with photographs which were taken with consent of the prosecutrix and WhatsApp chats which reflect that there was consensual relationship between the accused and prosecutrix. It is further stated by learned counsel for applicant that the accused is in judicial custody since his arrest in this case except for a brief period of one month when he was granted bail. It is also stated by learned counsel that applicant was unable to convey to his previous counsel regarding the WhatsApp chats and the photographs which were in his possession and the same being crucial evidence needs to be put to the prosecutrix for the purpose of cross-examination.

9. On the other hand, learned APP for the State states that the prosecutrix in this case has been cross-examined at length and a detailed cross-examination has been conducted by the learned counsel which runs into 9 pages. It is therefore, stated that the present petition is liable to be rejected.

10. Heard.

11. Before going into the facts of the case, it would be appropriate to reproduce Section 311 of the Cr.P.C., which reads as under: “311. Power to summon material witness, or examine person present.—Any Court may, at any stage of any inquiry, 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.”

12. Recently, the Hon’ble Supreme Court in Varsha Garg v. The State of Madhya Pradesh & Ors., 2022 SCC OnLine SC 986, held as under:

37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.” ******

13. Also relying in the case of Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, which was reiterated in the recent case of Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., (2008) 11 SCC 108, the issue was dealt by the Hon’ble Court regarding the allowing the application of Section 311 and it was noted that:- “28. 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 side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be “filling of loopholes”. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.” (emphasis supplied)