1 2025:CGHC:20026 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1492 of 2025 1 - Agam Kumar Dahariya S/o Vinod Dahariya Aged About 22 Years R/o Nawagaon (Dayali ) Awaspara Chowki Didori Police Station Chilfi District - Mungeli Chhattisgarh 2 - Manoj Dahariya S/o Chadar Alias Chandu Dahariya Aged About 36 Years R/o Nawagaon Awaspara Chowki Didori Police Station Chilfi District - Mungeli Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Station House Officer City Kotwali District - Surguja Chhattisgarh 2 - Xyz (Complainant Victims Parent ... Respondent(s) For Petitioner(s) : Mr. Ravi Kumar Bhagat, Advocate. For Respondent(s) : Mr. Vivek Sharma, Additional Advocate General, Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 01/05/2025 1. The present Criminal Misc. Petition under Section 528 of BNSS, 2023 has been filed by the petitioners against the impugned order dated 07.03.2025 2 passed by learned Additional Sessions Judge, First F.T.S.C. (POCSO Act) Bilaspur, District Bilaspur in Special Criminal Case No. 191/2024, whereby an application under Section 348 of B.N.S.S. filed by the petitioners for recalling of the victim PW-1 and mother PW-2 has been rejected. 2. The brief facts of the case are that the petitioners are facing trial for the offence under Sections 137(2), 87, 65(1), 64(2)(M) of B.N.S and Section 3 A, 4 (2) and 5(l)/6 of POCSO Act, before the learned trial Court. During the trial, the evidence of victim PW-1 and her mother PW-2 have been recorded on 23.01.2025. 3. On 07.02.2025 an application under Section 348 of BNSS has been filed by the petitioners/accused persons for recalling of the witnesses PW-1 and PW- 2 for their re-cross-examination on the ground that certain points which are relevant has been left during their cross-examination, therefore, they may be recalled for their re-cross-examination. The learned trial Court after hearing the parties, rejected the application filed by the petitioners vide order dated 07.03.2025 holding that the points on which the petitioners want to re-cross- examine the witnesses have not been disclosed and it appears that there is no ground for recalling of their re-cross-examination. The said order dated 07.03.2025 is under challenge in the present petition. 4. Learned counsel for the petitioners submits that the impugned order passed by the learned trial Court is illegal, erroneous and contrary to the law and same deserved to be set aside. It is further submitted that the victim has falsely been implicated in the aforesaid offences as she was a major girl and there was various aspects of the matter which was left over by the counsel during their cross-examination. In the present case the factual aspect the whether the initial statement was given under duress or not, it is necessary that they may be re-cross-examine, therefore, the application may be allowed. 3 5. On the other hand, learned counsel for the State opposes the submissions of the learned counsel for the petitioners and supported the impugned order passed by learned trial Court. 6. I have heard learned counsel for the parties and perused the material available in the present petition. 7. Hon'ble Supreme Court in the case of Manju Devi v. State of Rajasthan reported in AIR 2019 SC 1976 has held in para 15 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 CrPC 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 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 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.” 8. Hon'ble Supreme Court in the matter of Natasha Singh V. CBI (State) reported in 2013 AIR SCW 3554 has held in para 9 as under:- 4 “Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right.” 9. In the matter of Versha Garg Vs State of MP and others, 2022 SCC Online SC 986, Hon’ble Supreme Court has held as under: “34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra), while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed: 16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision — either discretionary or mandatory — depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice.” 35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the “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.” In that context the Court observed: “18 …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 5 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 to 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.” 36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P. State of W.B. v. Tulsidas Mundhra, Jamat Kewalji Govani v. State of Maharashtra, Masalti v. State of U.P., Rajeswar Prosad Misra v. State of W.B. and R.B. Mithani v. State of Maharashtra , the Court held:“ 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 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.” 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 by stander 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. 47. Finally, we also briefly deal with the objection of the respondents regarding the 147 stage at which the application under Section 311 was filed. The respondents have placed reliance on Swapan Kumar (supra), a two judge Bench decision of this Court, to argue that the application should not be allowed as it has been made at a belated stage. The Court in Swapan Kumar (supra) observed: 6 “11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has wide power under this Section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law. 12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision.” In the present appeal, the argument that the application was filed after the closure of the evidence of the prosecution is manifestly erroneous. As already noted above, the closure of the evidence of the prosecution took place after the application for the production of the decoding register and for summoning of the witness under Section 311 was dismissed. Though the dismissal of the application and the closure of the prosecution evidence both took place on 13 November 2021, the application by the prosecution had been filed on 15 March 2021 nearly eight months earlier. As a matter of fact, another witness for the prosecution, Rajesh Kumar Singh, was also released after examination and cross-examination on the same day as recorded in the order dated 13 November 2021 of the trial court. 10. It is well settled that the power conferred under Section 348 of BNSS 2023 (311) of Cr.P.C., should be invoked by the Court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons it should be exercised with great caution and circumspection. The Court has vide power under this section to even recall the witnesses for re-cross- examination or further examination, necessary in the interest of justice but 7 the same has to be exercised after taking into consideration the facts and circumstances of the case of each case. The power under this provision shall not be exercised, if the Court is of the view that the application has been filed as an abuse of process of law. 11. In the present case the witnesses PW-1 victim and PW-2 her mother have been examined on 23.01.2025, thereafter, an application has been filed for their re-cross-examination on 07.02.2025. From perusal of their deposition sheet it is clear that the victim and her mother have been cross-examined at length and they gave reply to all the questions put to them. After passage of time the accused has filed an application for re-cross-examination on the ground that some of the questions are yet to be put before them. No reasons has been assigned for the delay in moving application the entire scenario shows that they have been won over by the defence. It is the settled of law that the benefit of Section 311 of CrPC cannot be extended to the accused to fill up the lacuna. Mere submissions that some questions could not be put to the victim in her lengthy cross-examination, cannot be a ground to recall her, who has already been examined and cross-examined at length. The provisions of Section 311 of CrPC 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. In Manghi @ Narendra v. State of M.P., (2005) 4 MPLJ 136, the Madhya Pradesh High Court has held that “once thewitness is examined as a prosecution witness, he cannot be recalled for examination/cross-examination, merely because he filed affidavit contrary to his deposition made before the Trial Court”. Unfair advantage cannot be given to any of the parties and no one can be permitted to recall the witness for further re-cross-examination, merely on the ground that an affidavit has been filed by the defence after her deposition before the Trial Court. 8 12. For the reasons mentioned above, this Court do not find it to be a fit case exercise the discretion under Section 528 of BNSS, 2023. 13. Accordingly, the petition sans merits, liable to be and is hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.05.14 18:45:01 +0530