Chattisgarh High CourtSanjay Malik vs State Of Chhattisgarh on 18 July, 20221\n\n                                                                       NAFR\n\n          HIGH COURT OF CHHATTISGARH, BILASPUR\n\n                   Criminal Revision No. 721 of 2022\n\n      Sanjay Malik, S/o Ranveer Malik, aged about 36 years, R/o\n      Karamal, Police Station - Berla, District - Bemetara (C.G.)\n\n                                                              ---- Applicant\n\n                                  Versus\n\n      State of Chhattisgarh, Through: S.H.O., Police Station - Berla,\n      District - Bemetara (C.G.)\n\n                                                          ----Non-applicant\n\n\n\nFor Applicant              : Mr. Vaibhav A. Goverdhan, Adv.\nFor Non-applicant/State    : Mr. Gurudeo I. Sharan, Govt. Adv.\n\n\n                Hon'ble Shri Justice N.K. Chandravanshi\n\n                             Order On Board\n18.07.2022\n\n1.With the consent of the parties, the matter is heard finally at the\nmotion stage.2.    This criminal revision has been preferred against the order dated\n22.6.2022 passed by 1st Additional Sessions Judge, Fast Track Court,\nBemetara, District Bemetara in Sessions Trial No. 76/2021 whereby\nlearned court below has rejected the application underSection 311of the\nCode of Criminal Procedure, 1973 (henceforth "the Code") filed by the\napplicant for recalling of victim/prosecutrix (PW-1) for her further cross-\nexamination.3.    The applicant is facing trial before the 1st Additional Sessions\nJudge, Fast Track Court, Bemetara, District Bemetara for commission of\noffence   punishable      underSections   376and342of    IPC.\nVictim/prosecutrix has been examined as PW-1. The case is still pending\non the stage of evidence of prosecution witnesses and the case has2been fixed for hearing on 19.7.2022. Applicant/accused filed an\napplication underSection 311of the Code for recalling of the\nvictim/prosecutrix for her further cross-examination, which was rejected\nby the court below vide its impugned order dated 22.06.2022. Hence, this\nrevision petition.4.    Learned counsel appearing for the Applicant would submit that\nvictim/prosecutrix has been examined on 28.1.2022 and she has been\ncross-examined on behalf of the applicant/accused also, but due to some\ninadvertence and bona-fide mistake, particularly, in respect of her\nstatement recorded underSection 164of the Code, as there is huge\ncontradictions and omissions in respect of her aforesaid statement, FIR\nand the statement recorded underSection 161of the Code, she has not\nbeen cross-examined in this regard. It is further submitted that applicant\nis facing trial for heinousness offence of rape and if he is not permitted to\nbe further cross-examination of victim/prosecutrix, then it would cause\nhuge difficultly to make reasonable and justifiable defence, despite that\nlearned court below without considering the serious fact situation of the\ncase and very purpose of the provisions contained inSection 311of the\nCode, has mechanically dismissed the application underSection 311of\nthe Code filed by the applicant, therefore, it is prayed that impugned\norder, being illegal, erroneous and unsustainable in law, is liable to be\ndismissed and by allowing an application filed by the applicant, this\nrevision petition may be allowed in the interest of justice.5.    On the other hand, learned counsel for the State/non-applicant,\nwhile opposing the submissions made by counsel for the applicant, would\nsubmit that applicant had been afforded full and sufficient opportunity for\ncross-examination of victim/prosecutrix and she has been cross-\nexamined by the defence counsel at length. He also submits that further\ncross-examination of the victim/prosecutrix, that too, of victim of rape\ncould not be permitted to fill-up the lacuna, which has been left by the\ndefence counsel while cross-examining the victim/prosecutrix. Hence,\nthere is no illegality or infirmity committed by the learned Court below\nwhile rejecting the application filed by the applicant, therefore, the3revision petition is liable to be dismissed.6.       I have heard learned counsel appearing for the parties and perused\nthe impugned order as well as material available on record.7.       The applicant has filed Xerox copy of the deposition of\nvictim/prosecutrix (PW-1) and her statement recorded underSection 164of the Code. A perusal of her cross-examination would go to show that\nshe has not been cross-examined in respect of her statement recorded\nunderSection 164of the Code, no contradiction/omission has been\ntaken in this regard. No doubt, applicant/accused is facing serious\ncharges, which consist grave punishment, if he is convicted. In such\ncases, learned defence counsel must be very conscious and prepared\nwhile cross-examining the witness, that too, victim/prosecutrix but it\nseems that in the instant case, learned defence counsel was reluctant to\nsome extent.8.In the matter ofU.T. of Dadra & Nagar Haveli and another v.\nFatehsinh Mohansinh Chauhan1, their Lordships of the Supreme Court\nwhile considering the scope ofSection 311of the Code and also\nconsidering the various pronouncement of judgments has held in\nparagraph 15, which reads as under:-"15. A conspectus of authoritiesreferred to abovewould show that the principle is well settled that the\n             exercise of power underSection 311Cr.P.C. should be\n             resorted to only with the object of finding out the truth\n             or obtaining proper proof of such facts which lead to a\n             just and correct decision of the case, this being the\n             primary duty of a criminal court. Calling a witness or\n             re-examining a witness already examined for the\n             purpose of finding out the truth in order to enable the\n             Court to arrive at a just decision of the case cannot be\n             dubbed as "filling in a lacuna in prosecution case"unless the facts and circumstances of the case make it\n\n1    (2006) 7 SCC 5294apparent that the exercise of power by the Court would\n             result in causing serious prejudice to the accused\n             resulting in miscarriage of justice."This observation has been made by Hon'ble Apex Court in\n      an application underSection 311of the Code filed by the\n      prosecution whereas in the instant case, application underSection 311of the Code has been filed by the applicant/accused\n      but principle with regard to exercise power underSection 311of\n      the Code held by Hon'ble Supreme Court is applicable for both\n      the parties, so that justice could be done.9.In the matter ofNatasha Singh v. CBI (State) 2, their Lordships of\nthe Supreme Court has held as under :-"15. The scope and object of the provision is to enable the\n           Court to determine the truth and to render a just decision\n           after discovering all relevant facts and obtaining proper\n           proof of such facts, to arrive at a just decision of the case.\n           Power must be exercised judiciously and not capriciously\n           or arbitrarily, as any improper or capricious exercise of\n           such power may lead to undesirable results. An application\n           underSection 311Cr.P.C. must not be allowed only to fill\n           up a lacuna in the case of the prosecution, or of the\n           defence, or to the disadvantage of the accused, or to\n           cause serious prejudice to the defence of the accused, or\n           to give an unfair advantage to the opposite party. Further,\n           the additional evidence must not be received as a disguise\n           for retrial, or to change the nature of the case against\n           either of the parties. Such a power must be exercised,\n           provided that the evidence that is likely to be tendered by a\n           witness, is germane to the issue involved. An opportunity\n           of rebuttal however, must be given to the other party. The\n           power conferred underSection 311Cr.P.C. must therefore,\n           be invoked by the Court only in order to meet the ends of\n2    (2013) 5 SCC 7415justice, for strong and valid reasons, and the same must be\n        exercised with great caution and circumspection. The very\n        use of words such as 'any Court', 'at any stage", or 'or any\n        enquiry, trial or other proceedings', 'any person' and 'any\n        such person' clearly spells out that the provisions of this\n        section have been expressed in the widest possible terms,\n        and do not limit the discretion of the Court in any way.\n        There is thus no escape if the fresh evidence to be\n        obtained is essential to the just decision of the case. The\n        determinative factor should therefore be, whether the\n        summoning/recalling of the said witness is in fact, essential\n        to the just decision of the case."10.   Reverting back into the facts of the present case in light of the\naforecited judgments, as has been stated above that victim/prosecutrix\nhas not been cross-examined in respect of her statement recorded underSection 164of the Code and contradiction/omission has not been taken\nin this regard. Applicant has specifically mentioned in his application filed\nunderSection 311of the Code filed before the trial Court that was\nquestions has to be asked from the victim/prosecutrix.11.   Considering the scope and object of provisions contained inSection 311of the Code and also considering the aforesaid dictum given\nby Hon'ble Supreme Court in the aforesaid cases, it would be appropriate\nin the interest of justice to afford an opportunity to the applicant/accused\nfor recalling the victim/prosecutrix (PW-1) for her further examination up\nto the extent, which has been stated in the application underSection 311of the Code filed by him before the trial Court.12.   Resultantly, the impugned order dated 22.06.2022 is set aside and\nthe application underSection 311of the Code filed by the applicant on\n21.06.2022 is allowed with a condition that he will pay process fee for\nrecalling victim/prosecutrix (PW-1) and also to pay travelling expenses &\nother requisite expenses as per law to her, with a further condition that he\nshall pay cost of Rs.5,000/- to the District Legal Services Authority,6Bemetara.13.   It is made clear this order shall be subject to submission of receipt\n      of Rs.5,000/- payable to the District Legal Services Authority, Bemetara\n      before the trial Court.14.   The revision is thus allowed to the extent indicated hereinabove.15.   Needless to mention that after further cross-examination of the\n      aforesaid witness, the prosecution be afforded opportunity for her re-\n      examination in that regard, if required.Sd/-(N.K.Chandravanshi)\nD/-                                                                 Judge7