1 2025:CGHC:20534 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1524 of 2025 1 - Bittu Vyapari S/o Bimal Vyapari Aged About 24 Years R/o Village P.V. 118, Tahsil Pakhanjore District - Uttar Baster Kanker (C.G.) (Accused) ... Petitioner(s) versus 1 - The State Of Chhattisgarh Through Police Station Pakhanjore District - U.B. Kanker (C.G.) ... Respondent(s) For Petitioner(s) : Mr. Parag Kotecha, Advocate For Respondent(s) : Ms. Prabha Sharma, Panel Lawyer Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 05/05/2025 1. The present criminal misc. petition filed by the petitioner under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 against the impugned order dated 10.03.2025 passed by learned Special Judge (POCSO Act) Pakhanjur, District North Baster Kanker in Special Sessions Case No. 37/2023, whereby the application filed by the petitioner under Section 311 of the Cr.P.C. (Section 348 of BNSS, 2023) has been rejected. 2. The brief facts of the case are that the petitioner is an accused in the Special Sessions Case No. 37/2023 in which charge have been framed and recording of the evidence of prosecution witnesses are going on. On 2 22.01.2024, the victim was examined, on 02.04.2024 the maternal uncle of the victim was examined, on 22.08.2024, Dr. Pramila Toppo who medically examined the victim have been examined and on 16.10.2024, the investigating officer Laxman Kewat has been examined. After closure of prosecution witnesses the statement of the accused under Section 313 of Cr.P.C. have also been examined and the case was fixed for defence witnesses. On 02.01.2025 the petitioner/accused has filed an application under Section 311 of Cr.P.C. for re-calling of the victim, her maternal uncle, the doctor as well as the investigating officer for their re-cross-examination. The said application of the petitioner/accused has been rejected by the learned trial Court vide its order dated 10.03.2025 which is under challenge in the present petition. 3. Learned counsel for the petitioner would submit that during the examination of the aforesaid witnesses, certain points have been left by his counsel who representing him before the learned trial Court and certain discrepancies which came on the evidence of the witnesses is required to be clarified from the victim, her maternal uncle, the doctor and the investigating officer. The right to effective cross-examination is necessary for just decision of the case and the accused cannot be deprived for the same. The accused is ready to bear the cost of the witnesses. Therefore, they may be re-called for this re- cross-examiantion. 4. On the other hand, learned counsel appearing for the State opposes the submissions made by learned counsel for the petitioner and have submitted that the witnesses have been examined much prior to the date of filing of the application, they have been duly cross-examined by the counsel of the accused and the application has been filed after recording the accused statement. He would further submits that earlier another application of the same nature has been rejected by the learned trial Court vide order dated 26.11.2024 which reflected from the order-sheet itself and on the same 3 ground the subsequent application has been filed which has rightly been rejected by the learned trial Court. She would further submits that the petitioner has not disclosed as to on what point the witnesses are to be re- cross-examined. The provisions of Section 311 of Cr.P.C. cannot be availed by the accused to fulfill the lacuna. It appears that the witnesses are won over by the accused. The application filed by the petitioner is not bona-fide and therefore the petition is liable to be dismissed. 5. I have heard learned counsel for the parties and perused the material annexed with the petition. 6. In the present petition except the application filed under Section 311 of Cr.P.C. (annexure-A-1) and the impugned order dated 10.03.2025 (annexure A-2), no other document produced by the petitioner to substantiate his claim. The rejection of earlier application of the same nature filed under Section 311 of Cr.P.C. vide order dated 26.11.2024 (29.11.2024) could not be disputed by the learned counsel for the petitioner. 7. From perusal of the order-sheet dated 10.03.2025 it also appears that the victim has been examined on 22.01.2024, her maternal uncle has been examined on 02.04.2024, the doctor who medically examined the victim has been examined on 22.08.2024 and the investigating officer has been examined on 16.10.2024. After closure of the prosecution witnesses the present application under Section 311 of Cr.P.C. has been filed on 02.01.2025. In the said application the petitioner has stated that his counsel could not put the relevant question in cross-examination of the aforesaid witnesses with respect to the age of the victim as well as loan transaction between the maternal uncle of the victim and father of the accused and thereafter his counsel was changed and then the application has been filed. 8. In the present case, the petitioner has not filed the copies of the deposition sheets of the witnesses so that it could be ascertained whether the witnesses have been duly cross-examined on the point as claimed by the petitioner, or 4 not. Further the application has been filed after lapse of about 01 year of examination of the victim. It further transpires that another application of the same nature has been rejected by the learned trial court vide order dated 26.11.2024 (29.11.2024). 9. In the matter of “Ratan Lal v. Prahlad Jat” (2017) 9 SCC 340, the Hon’ble Supreme Court has held that: “16. That brings us to the next question as to whether the High Court was justified in setting aside the order of the Sessions Judge and allowing the application filed by PWs 4 and 5 for their re-examination. For ready reference Section 311 of the Cr.P.C. is 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”. 17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order. 18. In Vijay Kumar v. State of Uttar Pradesh and Anr., (2011) 8 SCC 136, this Court while explaining scope and ambit of Section 311 has held as under:- “17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously”. 5 19. In Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Others, (2006) 3 SCC 374, this Court has considered the concept underlining under Section 311 as under:- “27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind”. 20. In State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016) 2 SCC 402, it was held thus:- “…………… Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined”. 21. The delay in filing the application is one of the important factors which has to explained in the application. In Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711, this Court has held as under:- “38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5- 1995 stating that five accused persons named therein were innocent. An application filed by him purported to be 6 under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed”. 22. Coming to the facts of the present case, PWs 4 and 5 were examined between 29.11.2010 and 11.3.2011. They were cross-examined at length during the said period. During the police investigation and in their evidence, they have supported the prosecution story. The Sessions Judge has recorded a finding that they were not under any pressure while recording their evidence. After a passage of 14 months, they have filed the application for their re-examination on the ground that the statements made by them earlier were under pressure. They have not assigned any reasons for the delay in making application. It is obvious that they had been won over. We do not find any reasons to allow such an application. The Sessions Judge, therefore, was justified in rejecting the application. In our view, High Court was not right in setting aside the said order. ” 10. 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 cross-examination, cannot be a ground to recall her, who has already been examined and cross-examined. 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 victim 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 the witness 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 7 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. 11. In view of the above discussions, this Court does not find any error in the impugned order and is not inclined to interfere with it. Accordingly, the petition, being sans merits, is hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.06.04 11:33:30 +0530