1 2025:CGHC:5291 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 342 of 2025 Keshwar Rajwade S/o Shri Tejram Rajwade Aged About 35 Years R/o. Village - Latori, P.S. - Lakhanpur, Distt.- Surguja (C.G.) ... Petitioner(s) versus State of Chhattisgarh Through District Magistrate Surguja, Distt.- Surguja (C.G.) ---- Respondents ----------------------------------------------------------------------------------------------- For Petitioner : Mr. Aniruddha Shrivastava, Advocate For Respondent-State : Mr. GL Uike, PL. ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 29.01.2025 1. Heard on Admission. 2. Admit. 3. With the consent of the parties, matter is heard finally. 4. This petition has been filed under Section 528 of BNSS, 2023 challenging the order dated 30.12.2024 by which learned Session 2 Judge (FTC), Ambikapur, (CG) rejected the application of petitioner filed under Section 311 of Cr.PC. 5. Brief facts of this case is that learned Court below rejected the application filed by the petitioner, whereby he wants to re-examine the victim, complainant and the Doctor who examined the victim. Hence, this petition. 6. Learned counsel for the petitioner submits that application has been filed by the petitioner with sufficient grounds for recalling of aforesaid witnesses. As per the prosecution, victim is a mentally retarded person, however, no opinion has been sought from the Doctor nor any certificate in this regard has been collected by the prosecution. Learned trial Court ought to have considered the aspect that prejudice could be caused to the petitioner/accused due to non-examination of the witnesses on certain aspects. The petitioner has good case on merits and if the opportunity to cross- examine these witnesses is not provided same will cause irreparable loss to the petitioner. Petitioner/accused moved an application before the trial Court seeking re-examination of these witnesses in order to bring on record correct facts and proper disposal of the trial, however, the trial Court by the impugned order Annexure P-1 has erroneously rejected said application. He submits that rejection of application in the given facts and circumstances of the case would amount to failure of justice and it 3 would also amount to abuse of process of the Court. 7. Learned State Counsel opposing the submission of counsel for the petitioner would submit that the witnesses, who are sought to be recalled for re-examination, was already examined and cross- examined extensively by counsel for the defence. There is no sufficient ground to recall the aforesaid witness. The learned trial court has rightly rejected the said application for recall of these witnesses. 8. Heard learned counsel for parties and perused the order of trial Court placed on record. 9. For ready reference, Section 33(5) of the POCSO Act reads as under: “Section 33(5) of the POCSO Act aims to protect child witnesses from repeated courtroom exposure and potential trauma. While it generally restricts the recall of child witnesses for repeated testimony, it's not an absolute prohibition and can be relaxed in certain circumstances, especially when necessary for a just decision. 10.The Hon'ble Apex Court has laid down the some guidelines in the case of Natasha Singh vs. CBI (State), reported in 2013 (5) SCC 741 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 4 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 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." (emphasis supplied) 11.Considering facts of the case, submissions of learned counsel for the parties, pleadings made in the petition, further the fact that trial Court rejected the application of the petitioner on the ground that proper opportunity for cross-examination of aforesaid witnesses 5 has already been granted and no new facts have been stated in the application warranting re-calling of the witnesses and the reasons mentioned in the application is not sufficient for recalling of these witnesses, further considering the principle laid down in above decision and provision of Section 33(5) of the POCSO Act, I am not inclined to allow the present petition and permit the petitioner to re-examine the aforesaid witnesses. 12.Accordingly, the instant petition is hereby dismissed. CC as per rules. Sd/- Sd/- (Arvind Kumar Verma) Judge J/-