1 2025:CGHC:1029 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 489 of 2019 Judgment Reserved on :28/11/2024 Judgment Delivered on : 07/01/2025 1 - Harshvardhan Behra S/o Nehru Behra Aged About 21 Years R/o Kabir Nagar, Phase-4, Qtr. No. 227, P. S. Kabir Nagar, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Telibandha, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Shikhar Agnihotri on behalf of Mr. Awadh Tripathi, Advocate For Respondent(s) : Ms. Sunita Sahu, P.L. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. CAV Order 1. The present criminal revision under Section 397 of Cr.P.C. has been filed by the petitioner/accused against the order dated 05-03-2019, passed by learned 7th Additional Sessions Judge, Raipur, in Special Criminal Case No. 177/2016, whereby the application under Section 311 filed by the petitioner/accused, for 2 recalling the prosecutrix P.W. 1 for her re-cross examination, has been dismissed. 2. Brief facts of the case are that the petitioner is an accused in the Special Criminal Case No. 177/2016 and facing trial of the case for the offence under Section 376 of IPC and Section 3 and 4 of Protection of Children from Sexual Offences Act, 2012 (in short “the POCSO Act”). On 20-05-2016, a report has been lodged by the prosecutrix P.W. 1 against the petitioner/accused that she was being sexually exploited by the petitioner/accused and he committed rape upon her. The FIR has been registered and after investigation charge-sheet has been filed against the petitioner/accused before the learned trial court. Charge has been framed by the learned trial court and the petitioner/accused is facing trial of the case. 3. On 22-12-2016, the prosecutrix appears before the learned trial court for recording of her evidence as P.W. 1. On that day, her chief examination was done and her cross examination was withheld till the next day. On 23-12-2016, the prosecutrix was cross examined by the defence counsel and her examination and cross examination was closed. 4. On 16-03-2017, an application under Section 311 of Cr.P.C. was filed by the petitioner/accused for recalling of the prosecutrix P.W.1 for her re-cross examination. In the application, the petitioner/accused has taken the ground that on 22-12-2016, the original counsel of the petitioner/accused had gone to Bilaspur for some important work of State bar Council, from where he had gone to village Vakma, District Mahasamund as his mother has got seriously ill and he stayed there till 23-12-2016. On 22-12-2016, chief examination of the P.W. 1 (prosecutrix) was recorded and on 23-12-2016, his junior counsel had prayed for an adjournment on the ground of non-availability of his senior counsel but time was not granted by the learned trial court and under compulsion, he cross- examined the prosecutrix on that day. Since, the seized articles have not been provided to the accused at the time of recording of evidence of the prosecutrix, 3 therefore, she is required to be re-cross examined. It is also the ground taken in his application that from the documents obtained under right to information, it reveals that the prosecutrix has wrote a letter to Sakhi One Stop Centre that she is in love affair with the accused and has got married with him but her parents are not accepting her marriage, and she lodged report under the pressure of her parents. Therefore, for just decision of the case and to unveil the truth, the prosecutrix P.W. 1 is required to be re-cross-examined. 5. After hearing the parties, the learned trial court passed the order on 05- 03-2019 and dismissed the application filed by the accused by holding that on 22-12-2016, the case was adjourned on the application filed by Mr Yadav, learned counsel for the accused and the case was taken up on 23-12-2016 and on that he cross-examined the witness up to his satisfaction and the prosecutrix was cross-examined on all the points and no application was made on 23-12- 2016. Further, the application is filed after about four months of the earlier examination of the prosecutrix and also that Section 33(5) of the POCSO Act, provided that the Special Court shall ensure that the child is not called repeatedly to testify in court. The said order dated 05-03-2019 is under challenge in the present petition. 6. Learned counsel for the petitioner would submit that on 23-12-2016, under compelling circumstances, his junior cross-examined the prosecutrix P.W. 1 and the learned trial court should have granted time to cross-examine the P.W. 1 when his junior counsel requested for adjournment on the ground of non- availability of his senior counsel. The reason of the non-availability of his senior counsel is genuine grounds for adjournment of the case, and cross-examination by junior counsel would prejudice the defence of the accused. he would further submit that the junior counsel was not properly prepared the case and cross- examined the prosecutrix P.W. 1 under the compelling circumstances. He would further submit that the prosecutrix and the accused are married and blessed with a child, and are residing together. She wrote a letter to One Stop Sakhi Centre 4 that under the pressure of her parents, she lodged the report against the accused, which is required to be brought on record. He also submitted that since the prosecutrix and the accused are residing together after performing the marriage, the prosecutrix has compromised the matter and does not want to prosecute her complaint further, for which an application has also been filed by her. Therefore, in the interest of justice, the prosecutrix may be permitted to recall for her re-cross-examination. 7. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the petitioner and has submitted that the petitioner had been afforded the full opportunity of cross-examination of the prosecutrix P.W. 1 and all the material questions have been asked from her in her cross- examination. He would further submit that Section 33(5) of the POCSO Act provides that the Special Court should ensure that the child is not called repeatedly to testify in court. He would further submit that the learned trial court has rightly passed the impugned order, which is not required to be interfered with. 8. I have heard the learned counsel for the parties and gone through the material produced in the revision petition. 9. The petitioner is claiming for recalling of the prosecutrix for her re-cross- examination on the ground that on the date when she was cross-examined, he was not there. On the prayer made by his junior counsel, the learned trial court refused to accept his prayer and compel to cross-examine her and then under the compelling circumstances, he was cross-examining her. Certain points are being left, which is necessary in this case. It is also the ground that the prosecutrix has got married to the accused, and both of them are residing together and begotten with a child. In support of their grounds, the petitioner has submitted the documents of their marriage certificate issued by the Arya Samaj, Nehru Nagar (W), Bhilai, District Durg, registration certificate of their marriage issued by the Registering Authority, Municipal Corporation, Bhilai, District Durg, 5 application made before the learned trial court and also the documents related to the birth of their child. 10. In the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others, reported in (2013) 4 SCC 465, the Hon'ble Supreme Court has held in paras- 24 to 30 as under:- "Cross-examination is one part of the principles of natural justice 24. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Walshampayan, AIR 1961 SC 1623 held that the rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross- examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also Union of India v. T.R. Varma, AIR 1957 SC 882, Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719, Kesoram Cotton Mills Ltd. v. Gangadhar, AIR 1964 SC 708, New India Assurance Co. Ltd. v. Nusli Neville Wadia, (2008) 3 SCC 279, Rachpal Singh v. Gurmit Kaur, (2009) 15 SCC 88, Biecco Lawrie Ltd. v. State of W.B., (2009) 10 SCC 32 and State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772.) 25. In Lakshman Exports Ltd. v. CCE, (2005) 10 SCC 634, this Court, while dealing with a case under the Central Excise Act, 1944, considered a similar issue i.e. permission with respect to the cross- examination of a witness. In the said case, the assessee had specifically asked to be allowed to cross-examine the representatives of the firms concerned, to establish that the goods in question had been accounted for in their books of accounts, and that excise duty had been paid. The Court held that such a request could not be turned down, as the denial of the right to cross-examine, would amount to a denial of the right to be heard i.e. audi alteram partem. 26. In New India Assurance Co. Ltd. v. Nusli Neville Wadia, (2008) 3 SCC 279, this Court considered a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and held as follows: (SCC p. 295, para 45) "45. If some facts are to be proved by the landlord, indisputably, the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it is a part 6 of the principles of natural justice that should be held to be indefeasible right." (emphasis added) In view of the above, we are of the considered opinion that the right of cross- examination is an integral part of the principles of natural justice. 27. In K.L. Tripathi v. SBI, (1984) 1 SCC 43, this Court held that, in order to sustain a complaint of the violation of the principles of natural justice on the ground of absence of opportunity of cross-examination, it must be established that some prejudice has been caused to the appellant by the procedure followed. A party, who does not want to controvert the veracity of the evidence on record, or of the testimony gathered behind his back, cannot expect to succeed in any subsequent grievance raised by him, stating that no opportunity of cross- examination was provided to him, specially when the same was not requested, and there was no dispute regarding the veracity of the statement. (See also Union of India v. P.K. Roy, AIR 1968 SC 850 and Channabasappa Basappa Happali v. State of Mysore, (1971) 1 SCC 1.) In Transmission Corpn. of A.P. Ltd. v. Sri Rama Krishna Rice Mill, (2006) 3 SCC 74, this Court held: (SCC p. 80, para 9) “9. In order to establish that the cross-examination is necessary, the consumer has to make out a case for the same. Merely stating that the statement of an officer is being utilised for the purpose of adjudication would not be sufficient in all cases. If an application is made requesting for grant of an opportunity to cross-examine any official, the same has to be considered by the adjudicating authority who shall have to either grant the request or pass a reasoned order if he chooses to reject the application. In that event an adjudication being concluded, it shall be certainly open to the consumer to establish before the appellate authority as to how he has been prejudiced by the refusal to grant an opportunity to cross-examine any official." 28. The meaning of providing a reasonable opportunity to show cause against an action proposed to be taken by the Government is that the government servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. He can, therefore, do so by cross- examining the witnesses produced against him. The object of supplying 7 statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against him. Unless the said statements are provided to the government servant, he will not be able to conduct an effective and useful cross- examination. 29. In Rajiv Arora v. Union of India, (2008) 15 SCC 306, this Court held: (SCC p. 310,paras 13-14) "13. ... Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation. 14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non- examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review." 30. The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross examination is an integral part and parcel of the principles of natural justice." 11. In the matte of U.T. of Dadra & Nagar Haveli and another v. Fatehsinh Mohansinh Chauhan, 2006 (7) SCC 529, their Lordships of the Supreme Court while considering the scope of Section 311 of the Code and also considering the various pronouncement of judgments has held in paragraph 15, which reads as under:- “15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re- examining a witness already examined for the purpose of finding out the truth 8 in order to enable the Court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in 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.” 12. In the matter of Natasha Singh v. CBI (State), 2013 (5) SCC 741, the Hon’ble Supreme Court has held as under :- “15. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. 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 great caution and circumspection. The very use of words such as ‘any Court’, ‘at any stage”, or ‘or any enquiry, trial or other proceedings’, ‘any person’ and ‘any such person’ clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.” 13. Reverting to the facts of the present case, it appears from the impugned order that on 22-12-2016, an application was made for adjournment of the case on the ground that the counsel who is conducting the case had gone to Bilaspur but on that very day, the chief examination of P.W. 1 was recorded and it was fixed for 23-12-2016. The submission of the learned counsel for the petitioner is that on 23-12-2016 he could not appear before the learned trial court because of 9 the reason that he received the information about the ailment of his mother, and he rushed to his village but under compelling circumstances, his junior counsel has cross-examined the prosecutrix P.W. 1. Since he was not thoroughly prepared the case, he could not properly cross-examine her and some important point has left in her cross-examination. 14. Another ground raised by the learned counsel for the petitioner that the applicant and the prosecutrix got married on 21-04-2017, and they are residing together and from their wedlock, one child is born on 20-01-2019. They have submitted the relevant documents of their marriage and the birth of the child. Although, the provisions of Section 311 of Cr.P.C. can be invoked only in order to meet the ends of justice for strong and valid reasons, with great caution and circumspection and not to permit the accused to call the prosecutrix again and again for re-cross-examination but under the peculiar facts and circumstances of the present case, it would be appropriate to permit the petitioner/accused to recall the prosecutrix for her re-cross-examination to meet the ends of justice and recalling of prosecutrix P.W. 1 cannot be termed as “filling in a lacuna by the defence” as has been held by Hon'ble Supreme in U.T. of Dadra & Nagar Haveli and another (Supra). In view of the aforesaid legal position, provisions contained in Section 33(5) of the POCSO Act also could not come on the way to do lawful adjudication in the case. 15. Accordingly, in the facts and circumstances of the present case and in the light of the aforesaid law laid down by the Hon’ble Supreme Court, this court is of the opinion that it would be appropriate to grant one opportunity to the petitioner/accused to re-cross-examine the prosecutrix (P.W.1). The learned trial court shall fix a date for re-cross-examination of the prosecutrix (P.W.1). The re- cross-examination of the prosecutrix (P.W. 1) shall be restricted upto the grounds mentioned in the application dated 16-03-2017 filed under Section 311 of Cr.P.C. before the learned trial court and with respect to marriage of the prosecutrix with the petitioner/accused. The learned trial court may also impose conditions as it 10 thinks fit. The petitioner/accused shall bear the expenses of the witness, which would be fixed by the learned trial court. 16. With the aforesaid observation, the Criminal Revision is allowed and the impugned order dated 05/03/219 is set aside. 17. Needless to say, it is expected that the learned counsel for the petitioner/accused shall not repeat any questions which have already been put to the witness in her previous cross-examination. Further, no unnecessary adjournment shall be taken by him on any ground whatsoever. 17. With the aforesaid observation, the petition stands The impugned order dated 05-03-2019 passed by the learned trial court is set aside. Sd/- (Ravindra Kumar Agrawal) Judge Sagrika