Full Text
CRL.A. 155/2020
Date of Decision 24/01/2022 IN THE MATTER OF:
AMARNATH TIWARI ..... Appellant
Through: Mr. Satnarain Sharma, Mr. Kartik Agarwal, Mr. Shakti Saini and Mr. Anuj Kumar, Advocates.
Through: Ms. Meenakshi Chauhan, APP for State.
(VIA VIDEO CONFERENCING)
JUDGMENT
1. Allowed, subject to all just exceptions.
2. Application is disposed of. CRL.M.A. 2953/2020
1. The present application has been filed under Section 391 read with Section 311 Cr.P.C. on behalf of the appellant seeking recall and crossexamination of PW[3], PW[4], PW[5] and PW[7].
2. The sole contention raised by learned counsel for the appellant is that in trial, the aforesaid witnesses could not be effectively crossexamined resulting in serious prejudice to the appellant. 2022:DHC:369 Page[2] of 9 `
3. The prayer sought in the application is vehemently opposed by learned APP for the State.
4. I have heard the learned counsels as well as gone through the Trial Court Record.
5. In the present case, vide order dated 05.03.2015, the appellant was charged for the commission of offence under Section 5(m) of the POCSO Act, punishable under Section 6 of the POCSO Act, for having inserted his finger in the vagina of the child victim, who was aged about 6 years at the relevant time. The appellant pleaded not guilty and claimed trial. To support its case, the prosecution cited a total of 13 witnesses, including the child victim „M‟ (PW[4]), her younger brother „R‟ (PW[5]), her mother „B‟ (PW[3]) and her father „M‟ (PW[7]).
6. The prosecution evidence began on 01.05.2015, when PW[1] to PW[5] were summoned. On the said day, apparently a strike call was given by the Bar, as urged on behalf of the appellant, and for that reason, a counsel appointed by the Bar had represented the appellant and crossexamined PW[4] and PW[5], instead of his privately engaged counsel. PW[6] to PW[8] were examined on the next day, when cross-examination of PW[7] was also conducted by the learned counsel appointed by the Bar. Subsequently, on 05.05.2015, PW[9] to PW11 were examined, when the appellant was again represented by the learned counsel appointed by the Bar.
7. This Court is constrained to note that the present case being one where the accused/appellant was facing a serious charge, which is punishable with RI for a minimum of 10 years and may extend to imprisonment for life, the Trial Court seemingly defeated the purpose of fair trial initially by not adjourning the matter to a suitable date when the appellant could be represented by a counsel of his choice. The right to be Page[3] of 9 ` represented by a counsel of his/her own choice is constitutionally guaranteed to every accused and the conducting of the trial in the present case, while the accused/appellant was represented by a Bar-appointed counsel who only cross-examined 3 out of the total prosecution witnesses cited, prejudiced the case of the accused to say the least.
8. On 28.05.2015, the error however came to be rectified when an application filed on behalf of the appellant under Section 311 Cr.P.C seeking recall of PW[3] to PW[5], PW[7] to PW[9] and PW11 for their crossexamination was partially allowed. A perusal of the records would show that PW[3], PW[7] to PW[9] and PW11 were permitted to be recalled and the appellant did not press the application with respect to PW[4] and PW[5]. At this stage, the cross-examination of the recalled witnesses was conducted by the learned counsel appointed by the appellant.
9. Subsequently, the accused/appellant did not raise a grievance regarding cross-examination of the prosecution witnesses until the filing of the present application under Sections 391/311 Cr.P.C., pending adjudication of the appeal filed before this Court against the judgment of conviction dated 10.12.2019. Vide the application, the appellant again seeks to recall stated prosecution witnesses, on the ground that proper cross-examination did not take place.
10. Before proceeding further, be it noted that the scope of Section 311 Cr.P.C. has been considered by the Supreme Court at length in P. Sanjeeva Rao v. State of Andhra Pradesh reported as (2012) 7 SCC 56 and Natasha Singh v. Central Bureau of Investigation (State) reported as (2013) 5 SCC 741. From an overview of the decisions, it is discernible that the rejection/acceptance of an application filed under Section 311 Cr.P.C. is closely linked with guaranteeing a fair trial, that too, not only to the accused, but also to the victim(s), witnesses and society at large. Page[4] of 9 ` Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism [Refer: Rattiram and Others v. State of Madhya Pradesh through Inspector of Police reported as (2012) 4 SCC 516].
11. At the same time however, in State (NCT of Delhi) v. Shiv Kumar Yadav and Another reported as (2016) 2 SCC 402, the Supreme Court has cautioned that witnesses cannot be allowed to be routinely recalled on the ground that cross-examination was not proper for reasons attributable to a counsel. Sufficient and cogent reasons must exist for a Court to permit recall of witnesses, particularly in cases of heinous offences. Relevant excerpt from the decision is reproduced hereunder:-
12. Considering that two of the prosecution witnesses sought to be recalled in the present case are child witnesses, i.e. the child victim (PW[4], aged 6 years at the time of examination) and the child victim’s brother (PW[5], aged 4.[5] years at the time of examination), it is deemed apposite to allude to Section 33(5) of the POCSO Act, which prescribes that the Special Court shall ensure that a child is not repeatedly called to testify in the Court. Needless to state, the provision is targeted at ensuring protection to a child witness from victimization and harassment by repeated appearances in Court. In Jaidev v. State, CRL.M.C. 4412/2019, this Court had the occasion to consider the mandate of Section 33(5) of the POCSO Act under similar circumstances. Keeping in view the facts and circumstances of the case, the petition, which was filed against the order of the Trial Court rejecting application of the accused for recall of a child witness, was dismissed and it was observed:-
13. The Courts throughout the country, being cognizant of the mandate contained in Section 33(5) of the POCSO Act, have likewise declined entertaining requests for recall of child witnesses [Refer: S. Sankara Varman v. State represented by the Inspector of Police W-18, M.K.B. Nagar Police Station, M.K.B. Nagar, Chennai reported as 2016 SCC OnLine Mad 5681; Bimla Devi v. The State Govt. of NCT of Delhi reported as 2017 SCC OnLine Del 11425; Vikas v. State reported as MANU/DE/3270/2020 and Sivakumar v. State of Kerala Represented Page[7] of 9 ` by the Public Prosecutor, High Court of Kerala reported as 2021 SCC OnLine Ker 3022].
14. Adverting to the present case, it is observed at the cost of repetition that when an application seeking recall of PW[3] to PW[5], PW[7] to PW[9] and PW11 came to be filed on behalf of the appellant, the concerned Court vide order dated 28.05.2015 partially allowed it and permitted recall of PW[3], PW[7] to PW[9] and PW11 for their crossexamination. The application was not pressed by the appellant himself in respect of PW[4] and PW[5]. The said order was never challenged before this Court and it attained finality. Subsequently, the learned counsel engaged by the appellant conducted the cross-examination of PW[3], PW[7], PW[9] and PW11. The appellant also examined witnesses in his defence, wherefore the Trial Court convicted him for the charged offences vide the impugned judgment, resulting in filing of the present appeal in the year 2020.
15. In support of his submissions, learned counsel for the appellant has placed reliance on the decision in Dev Kumar Yadav v. State reported as 2019 SCC Online Del 8485. A plain reading of the decision shows that it came to be passed in a case where the Trial Court itself had noted in the impugned judgment that for some prosecution witnesses, there was either no cross-examination or no material cross-examination. Considering that the same had resulted in grave prejudice to the appellant, the matter was sent back for re-trial. In the present case however, after considering the request of the accused, the Trial Court had permitted recall of certain prosecution witnesses prior to passing of a judgment, whereafter they were crossexamined by a counsel of the appellant’s choice. Thus, the reliance Page[8] of 9 ` sought to be placed on the decision in Dev Kumar Yadav (Supra) is misplaced.
16. From an overview of the material on record, it is borne out that sufficient opportunity to cross-examine the prosecution witnesses who are sought to be recalled at this stage was available to the appellant as well as availed. Two of the said witnesses were in fact recalled during the trial pursuant to an application filed under Section 311 Cr.P.C. by the appellant, which was not pressed with respect to the other two witnesses by the appellant himself. In the present application, it is averred that proper crossexamination of the witnesses has not taken place. However, no sufficient ground has been raised to incline this Court to direct recall of the prosecution witnesses, which power, needless to state, has to be exercised sparingly and judiciously. Further, the effect of prejudice occasioned by the cross-examination of prosecution witnesses by the Bar-appointed counsel stood remedied when the appellant’s application under Section 311 Cr.P.C. was allowed by the Trial Court, albeit partially. Even though PW[4] and PW[5] were not recalled, there is nothing on record to indicate that the two witnesses were not cross-examined at length and/or on material aspects.
17. Keeping in view the aforesaid and the exposition of law on the issue, this Court is of the considered opinion that the present application lacks merit and is an abuse of the process of the Court. Accordingly, the same is dismissed. Page[9] of 9 ` CRL.A. 155/2020 List in due course at its own turn.
JUDGE JANUARY 24, 2022 ga