Undoubtedly, Section 217 of the Code provides for
recall and examination of any witness who may have been earlier
examined, after the addition or alteration of a charge. The normal
rule laid down by the said Section is recall of the witness for
further examination and/or cross examination, as the case may
be, consequent upon alteration or addition of the charge.
However, the Section also retains the power of the Court to refuse
to recall, resummon or reexamine the witness who has already
been examined, in limited circumstances : i.e. if the Court
considers that recall and proposed reexamination is for the
Coming to the facts of this case, admittedly, the
purpose of vexation, or delay, or for defeating the ends of justice.1
CRIMINAL REVISION APPLICATION NO. 146 OF 2013
BENCH AT AURANGABAD
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
The State of Maharashtra,
VERSUS
Shrikant Bandu Bhojne
CORAM : ABHAY M. THIPSAY, J.
Dated: August 27, 2013
Citation; 2013 ALL M R(CRI)3831
1.
Heard. By consent, admitted and taken up for final
hearing forthwith. By consent, calling for Record and Proceedings
dispensed with.
The respondent is the sole accused in Sessions Case
2.
No.116/2010 pending before the Sessions Court, at Parbhani. In
that case, the First Information Report came to be lodged on the
allegations that the respondent herein and one Suresh Shelke had
committed the offences punishable under Sections 376 of the
Indian Penal Code and 366 of the Indian Penal Code read with
Section 34 of Indian Penal Code. After investigation, the
Investigating Agency filed charge sheet only against the
respondent alleging the commission of offences punishable under
Sections 376 of Indian Penal Code and 366 of Indian Penal Code
by the respondent. The charge of offences punishable under
Sections 376 of Indian Penal Code and 366 of Indian Penal Code
was framed on 20.4.2011 and the case was kept for recording of
evidence. After the evidence of the victim – the first witness for
prosecution was recorded, the prosecution filed an application
before the Trial Court requesting the Court to frame an additional
charge in the matter. The Court, however, completed the recording
of the evidence of the victim – PW1. After cross examination of the
victim was over, prosecution filed an application (Exh.11) praying
that the prosecution be permitted to reexamine the P.W.1. The
Court, however, rejected the same by an order dated 11.08.2011.
The Court framed an additional charge in respect of an offence
punishable under Section 417 of Indian Penal Code on 17.8.2011
against the respondent. The prosecution then made an application
(Exh.12) for recall of PW 1 for the purpose of reexamining her.
The Court, however, rejected said application by an order dated
18.08.2011.
Being aggrieved by the orders dated 11.8.2011 and
3.
18.8.2011 passed by the learned Additional Sessions Judge2,
Parbhani, the State of Maharashtra has approached this Court
invoking its revisional jurisdiction and challenging the said orders.
4.
I have heard Mr. K.S.Patil, learned APP for the
applicantState. I have heard Mr.S.S.Rathi, learned counsel for the
respondent original accused. With their assistance, I have gone
through the revision application and all the annexures thereto,
including the the notes of evidence of the victim as recorded in the
trial Court.
5.
It may be recalled that the charge sheet was filed
against the respondent alleging the commission of offences
punishable under Sections 376 of the Indian Penal Code and 366
of the Indian Penal Code, but in the course of the examinationin
chief itself, the victim stated that the respondent (accused) had
promised her that he would marry her and that had asked her to
go with him. The victim said that she had fallen a prey to the
promise of the respondent and had gone with him to Surat. She
also stated in her evidence that respondent had sexual intercourse
6.
with her from time to time at Surat under the promise of marriage.
Apparently, in view of this evidence of the victim, the
prosecution felt it advisable to make an application for addition of
a charge of an offence punishable under Section 417 of the Indian
Penal Code. After the Court had added the said charge, prayer for
recall of the victim was made.
7.
Undoubtedly, Section 217 of the Code provides for
recall and examination of any witness who may have been earlier
examined, after the addition or alteration of a charge. The normal
rule laid down by the said Section is recall of the witness for
further examination and/or cross examination, as the case may
be, consequent upon alteration or addition of the charge.
However, the Section also retains the power of the Court to refuse
to recall, resummon or reexamine the witness who has already
been examined, in limited circumstances : i.e. if the Court
considers that recall and proposed reexamination is for the
Coming to the facts of this case, admittedly, the
8.
purpose of vexation, or delay, or for defeating the ends of justice.
application filed by the prosecution for reexamination of the
victim had already been rejected by the trial Court. In my
opinion, therefore, under these circumstances only because a
charge was added subsequently, the prosecution was not entitled
to seek the recall of the victim, as a matter of right and the Court
could have examined whether it was a case of circumventing the
previous order passed by it viz. of refusing permission to re
examine the PW 1.
9.
However, the State, by this revision application, has
also challenged the initial decision of the trial court not to permit
reexamination of the victim. That order therefore, needs to be
considered independently.
It appears that the Public Prosecutor in charge of the
10.
matter, formulated the questions that would be put to the victim
in the reexamination. I have gone through the said questions
which were mentioned in the application (Exh.11) filed before the
trial court.
After hearing the learned APP and learned counsel for
11.
respondent, the question no.1 proposed to be asked seems to be
totally unnecessary and not relevant. As regards question No.2, it
appears that only the reason for not stating certain things to the
police (which have been brought on record as omissions) are
sought to be obtained from the victim. Considering the object of
reexamination, there seems to be no bar to permit this line of
questioning. Needless to say, that witness thereafter would be
subjected to further cross examination on the basis of answers
which would be elucidated on the basis of the questions.
Similarly, the question No.3 and question No.4 in the application
(Exh.11) are also basically clarificatory and seek to elucidate some
clarification from the victim with respect to the facts already
deposed to by her. These questions cannot be said to be
Thus, in my opinion, though the underhand manner
12.
impermissible in the reexamination.
in which the prosecution sought to nullify the effect of order
passed by the trial Court refusing permission to reexamine the
victim was not proper and though, the prosecution under the
circumstances was not entitled to recall the victim for re
examination only on the ground of an additional charge having
been framed, still, in the first place, the trial court should not
have refused permission to reexamine the victim at least for the
purpose of putting questions mentioned at serial nos. 2, 3 and 4
in the application at Exh.11.
13.
The net result of the aforesaid discussion is that
Revision Application needs to be partly allowed.
14.
The orders dated 11.8.2011 and 18.8.2011 passed by
the trial Court below applications at Exh.11 and Exh.12,
respectively, are set aside and are substituted by the following
order.
The Trial Court shall permit the
prosecution to recall the PW 1 for the purpose of re
examining her by putting the questions mentioned at
Serial Nos.2,3 and 4 in the application at Exh.11, or
any other questions as may arise purely from the
answers given to the said questions. Needless to say
that the respondent shall be entitled to cross examine
PW 1 further after her reexamination.”
Revision Application is disposed of in the aforesaid
15.
terms.
JUDGE
( ABHAY M. THIPSAY )
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