These are the principles to be kept in mind while
appreciating the individual facts and circumstances, in order to
find out whether recall of the witness is necessary. There cannot
be any straitjacket formula for exercise of such discretion, which
is judicial in nature. The court has to find that recall of the
witness is necessary for the just decision of the case which is a
sine qua non for exercise of such discretion. The learned
President, Children's Court, on consideration of the evidence of
these witnesses, has come to the conclusion, and to my mind
rightly so, that such a recall would not be necessary. In the case
of Narayan Gadekar (supra), the concerned Advocate had
accepted his inadvertence in not putting contradictions to the
witnesses, because of which, it was found that recall of the witness
was necessary. I, thus, find that the said case would be
distinguishable on facts. It is trite that mere change of Counsel
would not be a ground for recall of any witnesses. The test would
be whether such a recall is necessary for the just decision of the
case. In that view of the matter, I do not find any case for
interference.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.81 OF 2015
MR. ABDUL CHAPPARBAN
Versus
STATE
[Through Public Prosecutor,
High Court, Panaji, Goa]
CORAM :- C. V. BHADANG, J.
Date :- 9thJuly , 2015.
Citation: 2016 ALLMR(CRI)2486
2. Shri Amonkar, the learned Additional Public
Prosecutor waives service on behalf of the respondent.
3. Heard finally with consent.
4. By this petition, the petitioner/ accused is challenging
the order dated 30/04/2015, passed by the President, Children's
Court at Panaji, whereby the President, Children's Court has
refused to recall the prosecution witnesses PW1 and PW2.
5. The brief facts are that the petitioner is facing
prosecution for the offences punishable under Sections 376 and
506 of Indian Penal Code (I.P.C., for short) read with Section 8 of
the Goa Children's Act, 2003 and Section 5(n) of Protection of
Children from Sexual offence Act, 2012, before the Children's
Court at Panjim.
6. According to the prosecution, the petitioner was
staying along with the mother of the victim. The victim girl is said
to be 11 years old. As per the complaint dated 26/02/2013, lodged
by the complainant PW1 Roshan, who is the mother of the victim,
on 25/02/2013 at about 11.00 a.m., two unidentified persons had
approached her informing that on 24/02/2013 at around 12.20
hours, the petitioner had raped the victim near Pernem Railway
Station. On such a complaint, an offence came to be registered
and on investigation, the petitioner is facing prosecution before
the Children's Court.
7. It appears that the petitioner was earlier represented
by Advocate Vengurlekar and he had cross-examined the
prosecution witnesses, PW1 Roshan and PW2 the victim.
Thereafter, the petitioner engaged another Counsel, whereupon
an application under Section 311 of Criminal Procedure Code
(Cr.P.C.) came to be filed for recall of PW1 and PW2. It was
contended that the petitioner is not the step father of the victim as
there was no marriage between PW1 i.e. the mother of the victim
and the petitioner. It was contended that this aspect was not
brought on record during cross-examination. It is next contended
that the petitioner is already married and is having two children.
It was contended that PW1 was having an affair with the
petitioner. It was contended that on 23, 24 and 25th February,
2013, the petitioner was present in his house at Pernem. It was
contended that the reason for lodging of the complaint was a
dispute between the petitioner and PW1, as according to the
petitioner, the complainant was annoyed as the petitioner was
visiting his family at Chimbel. It was contended that all these
relevant aspects were not put to the witnesses and there is no
effective cross-examination and therefore, the witnesses need to
be recalled.
8. The application was opposed on behalf of the
prosecution.
9. The learned President, Children's Court, by the
impugned order, found that PW1 and PW2 were already subjected
to cross-examination at length and the powers under Section 311
of Cr.P.C. cannot be exercised to allow a party to fill in lacuna.
The learned President of the Children's Court found that unless
and until the Court is of the opinion that the recall of the witness
is necessary for just decision of the case, the witness cannot be
recalled only because the accused wants to bring on record some
additional circumstances. In that view of the matter, the
application came to be rejected.
10. I have heard Shri Teles, the learned Counsel for the
petitioner and Shri Amonkar, the learned Additional Public
Prosecutor for the respondent. With the assistance of the learned
Counsel, I have perused the impugned order as also the complaint
and the evidence of PW1 and PW2.
11. It is submitted on behalf of the petitioner that the
material and relevant aspects were not put to the witnesses, when
there was cross-examination by the earlier Counsel. It is
submitted that they related to the fact about there being absence
of marriage between the petitioner and the PW1 as also about the
presence of other family members in the house, which would have
obviated the occurrence of any such incident, in which the victim
had claimed that the petitioner had repeatedly exploited her
sexually for a period of two years prior to the lodging of the
complaint. It is submitted that these aspects would be material.
The learned Counsel would submit that there is discrepancy
between the complaint and the evidence of PW1 and she needs to
be cross-examined on these aspects also. Reliance is placed on
the decision of the Hon'ble Supreme Court in the case of Rajaram
P. Yadav Vs. State of Bihar, reported in 2013(3) B Cr C 338
(SC), in order to submit that the Hon'ble Apex Court has laid down
guidelines for the exercise of the powers under Section 311 of
Cr.P.C. in paragraph 23 of the judgment and in the face of such
guidelines, the application under Section 311 of Cr.P.C. is
required to be allowed. Reliance is also placed on the decision of
this Court in the case of Narayan G. Gadekar Vs. State, reported
in 2013(1) Bom. C.R.(Cri.) 627. He, therefore, submitted that the
petition be allowed.
12. On the contrary, it is submitted by Shri Amonkar, the
learned Additional Public Prosecutor that mere change of Counsel
would not entitle a party to seek recall of the witnesses. It is
submitted that the witnesses have been cross-examined in detail
and no ground for recall has been made out.
13. On hearing the learned Counsel for the parties and on
perusal of the record, I do not find that a case for interference is
made out. A perusal of the application under Section 311 of
Cr.P.C., filed by the petitioner, would show that the material
ground for recall is the change of Counsel. It is contended that
there was no effective cross-examination of the witnesses,
particularly on the point of absence of any marriage between PW1
and the petitioner (paragraph 2 of the application) and about the
possibility of presence of the family members in the house, in the
wake of the allegation that the victim was sexually exploited for a
period of two years prior to filing of the complaint. A bare perusal
of the evidence of PW1 would show that the said witness has been
cross-examined on these aspects. PW1 has admitted that she was
not married to the petitioner. That she has not separated from her
husband, however she was residing with the petitioner with her
daughter. Even as far as the aspect about the presence of other
family members is concerned, PW2 has admitted that the house
consisted of only one room. Her mother and two brothers used to
sleep in the same room. Thus, a bare perusal of the evidence
would show that these witnesses have been cross-examined on the
aspects on which, it is now claimed that there is no crossexamination.
It further appears that these witnesses have also
been cross-examined on the point of reason for lodging of the
complaint, namely according to the petitioner, the complainant
was annoyed on account of the fact that the petitioner used to visit
his wife and children at Chimbel. That has also come in the crossexamination
of these witnesses.
14. In the case of Rajaram P. Yadav, (supra), the Hon'ble
Apex Court, after taking a survey of decisions holding the field,
has held thus :
“23. From a conspectus consideration of the above
decisions, while dealing with an application under
Section 311 Cr.P.C. read along with Section 138 of the
Evidence Act, we feel the following principles will have
to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the
new evidence is needed by it? Whether the evidence
sought to be led in under Section 311 is noted by the
Court for a just decision of a case?
b) The exercise of the widest discretionary power
under Section 311 Cr.P.C. should ensure that the
judgment should not be rendered on inchoate,
inconclusive speculative presentation of facts, as
thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to
be essential to the just decision of the case, it is the
power of the Court to summon and examine or recall
and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C.
should be resorted to only with the object of finding
out the truth or obtaining proper proof for such
facts, which will lead to a just and correct decision
of the case.
e) The exercise of the said power cannot be dubbed
as filling in a lacuna in a prosecution case, unless
the facts and circumstances of the case make it
apparent that the exercise of power by the Court
would result in causing serious prejudice to the
accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised
judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every
respect essential to examine such a witness or to
recall him for further examination in order to arrive
at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously
imposes a duty on the Court to determine the truth
and to render a just decision.
i) The Court arrives at the conclusion that additional
evidence is necessary, not because it would be
impossible to pronounce the judgment without it,
but because there would be a failure of justice
without such evidence being considered.
j) Exigency of the situation, fair play and good sense
should be the safe guard, while exercising the
discretion. The Court should bear in mind that no
party in a trial can be foreclosed from correcting
errors and that if proper evidence was not adduced
or a relevant material was not brought on record
due to any inadvertence, the Court should be
magnanimous in permitting such mistakes to be
rectified.
k) The Court should be conscious of the position that
after all the trial is basically for the prisoners and
the Court should afford an opportunity to them in
the fairest manner possible. In that parity of
reasoning, it would be safe to err in favour of the
accused getting an opportunity rather than
protecting the prosecution against possible
prejudice at the cost of the accused. The Court
should bear in mind that improper or capricious
exercise of such a discretionary power, may lead to
undesirable results.
l) The additional evidence must not be received as a
disguise or to change the nature of the case against
any of the party.
m) The power must be exercised keeping in mind
that the evidence that is likely to be tendered, would
be germane to the issue involved and also ensure
that an opportunity of rebuttal is given to the other
party.
n) The power under Section 311Cr.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 care, caution
and circumspection. The Court should bear in mind
that fair trial entails the interest of the accused, the
victim and the society and, therefore, the grant of
fair and proper opportunities to the persons
concerned, must be ensured being a constitutional
goal, as well as a human right.”
15. These are the principles to be kept in mind while
appreciating the individual facts and circumstances, in order to
find out whether recall of the witness is necessary. There cannot
be any straitjacket formula for exercise of such discretion, which
is judicial in nature. The court has to find that recall of the
witness is necessary for the just decision of the case which is a
sine qua non for exercise of such discretion. The learned
President, Children's Court, on consideration of the evidence of
these witnesses, has come to the conclusion, and to my mind
rightly so, that such a recall would not be necessary. In the case
of Narayan Gadekar (supra), the concerned Advocate had
accepted his inadvertence in not putting contradictions to the
witnesses, because of which, it was found that recall of the witness
was necessary. I, thus, find that the said case would be
distinguishable on facts. It is trite that mere change of Counsel
would not be a ground for recall of any witnesses. The test would
be whether such a recall is necessary for the just decision of the
case. In that view of the matter, I do not find any case for
interference. Consequently, Writ Petition is dismissed, with no
order as to costs.
C. V. BHADANG, J.
appreciating the individual facts and circumstances, in order to
find out whether recall of the witness is necessary. There cannot
be any straitjacket formula for exercise of such discretion, which
is judicial in nature. The court has to find that recall of the
witness is necessary for the just decision of the case which is a
sine qua non for exercise of such discretion. The learned
President, Children's Court, on consideration of the evidence of
these witnesses, has come to the conclusion, and to my mind
rightly so, that such a recall would not be necessary. In the case
of Narayan Gadekar (supra), the concerned Advocate had
accepted his inadvertence in not putting contradictions to the
witnesses, because of which, it was found that recall of the witness
was necessary. I, thus, find that the said case would be
distinguishable on facts. It is trite that mere change of Counsel
would not be a ground for recall of any witnesses. The test would
be whether such a recall is necessary for the just decision of the
case. In that view of the matter, I do not find any case for
interference.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.81 OF 2015
MR. ABDUL CHAPPARBAN
Versus
STATE
[Through Public Prosecutor,
High Court, Panaji, Goa]
CORAM :- C. V. BHADANG, J.
Date :- 9thJuly , 2015.
Citation: 2016 ALLMR(CRI)2486
2. Shri Amonkar, the learned Additional Public
Prosecutor waives service on behalf of the respondent.
3. Heard finally with consent.
4. By this petition, the petitioner/ accused is challenging
the order dated 30/04/2015, passed by the President, Children's
Court at Panaji, whereby the President, Children's Court has
refused to recall the prosecution witnesses PW1 and PW2.
5. The brief facts are that the petitioner is facing
prosecution for the offences punishable under Sections 376 and
506 of Indian Penal Code (I.P.C., for short) read with Section 8 of
the Goa Children's Act, 2003 and Section 5(n) of Protection of
Children from Sexual offence Act, 2012, before the Children's
Court at Panjim.
6. According to the prosecution, the petitioner was
staying along with the mother of the victim. The victim girl is said
to be 11 years old. As per the complaint dated 26/02/2013, lodged
by the complainant PW1 Roshan, who is the mother of the victim,
on 25/02/2013 at about 11.00 a.m., two unidentified persons had
approached her informing that on 24/02/2013 at around 12.20
hours, the petitioner had raped the victim near Pernem Railway
Station. On such a complaint, an offence came to be registered
and on investigation, the petitioner is facing prosecution before
the Children's Court.
7. It appears that the petitioner was earlier represented
by Advocate Vengurlekar and he had cross-examined the
prosecution witnesses, PW1 Roshan and PW2 the victim.
Thereafter, the petitioner engaged another Counsel, whereupon
an application under Section 311 of Criminal Procedure Code
(Cr.P.C.) came to be filed for recall of PW1 and PW2. It was
contended that the petitioner is not the step father of the victim as
there was no marriage between PW1 i.e. the mother of the victim
and the petitioner. It was contended that this aspect was not
brought on record during cross-examination. It is next contended
that the petitioner is already married and is having two children.
It was contended that PW1 was having an affair with the
petitioner. It was contended that on 23, 24 and 25th February,
2013, the petitioner was present in his house at Pernem. It was
contended that the reason for lodging of the complaint was a
dispute between the petitioner and PW1, as according to the
petitioner, the complainant was annoyed as the petitioner was
visiting his family at Chimbel. It was contended that all these
relevant aspects were not put to the witnesses and there is no
effective cross-examination and therefore, the witnesses need to
be recalled.
8. The application was opposed on behalf of the
prosecution.
9. The learned President, Children's Court, by the
impugned order, found that PW1 and PW2 were already subjected
to cross-examination at length and the powers under Section 311
of Cr.P.C. cannot be exercised to allow a party to fill in lacuna.
The learned President of the Children's Court found that unless
and until the Court is of the opinion that the recall of the witness
is necessary for just decision of the case, the witness cannot be
recalled only because the accused wants to bring on record some
additional circumstances. In that view of the matter, the
application came to be rejected.
10. I have heard Shri Teles, the learned Counsel for the
petitioner and Shri Amonkar, the learned Additional Public
Prosecutor for the respondent. With the assistance of the learned
Counsel, I have perused the impugned order as also the complaint
and the evidence of PW1 and PW2.
11. It is submitted on behalf of the petitioner that the
material and relevant aspects were not put to the witnesses, when
there was cross-examination by the earlier Counsel. It is
submitted that they related to the fact about there being absence
of marriage between the petitioner and the PW1 as also about the
presence of other family members in the house, which would have
obviated the occurrence of any such incident, in which the victim
had claimed that the petitioner had repeatedly exploited her
sexually for a period of two years prior to the lodging of the
complaint. It is submitted that these aspects would be material.
The learned Counsel would submit that there is discrepancy
between the complaint and the evidence of PW1 and she needs to
be cross-examined on these aspects also. Reliance is placed on
the decision of the Hon'ble Supreme Court in the case of Rajaram
P. Yadav Vs. State of Bihar, reported in 2013(3) B Cr C 338
(SC), in order to submit that the Hon'ble Apex Court has laid down
guidelines for the exercise of the powers under Section 311 of
Cr.P.C. in paragraph 23 of the judgment and in the face of such
guidelines, the application under Section 311 of Cr.P.C. is
required to be allowed. Reliance is also placed on the decision of
this Court in the case of Narayan G. Gadekar Vs. State, reported
in 2013(1) Bom. C.R.(Cri.) 627. He, therefore, submitted that the
petition be allowed.
12. On the contrary, it is submitted by Shri Amonkar, the
learned Additional Public Prosecutor that mere change of Counsel
would not entitle a party to seek recall of the witnesses. It is
submitted that the witnesses have been cross-examined in detail
and no ground for recall has been made out.
13. On hearing the learned Counsel for the parties and on
perusal of the record, I do not find that a case for interference is
made out. A perusal of the application under Section 311 of
Cr.P.C., filed by the petitioner, would show that the material
ground for recall is the change of Counsel. It is contended that
there was no effective cross-examination of the witnesses,
particularly on the point of absence of any marriage between PW1
and the petitioner (paragraph 2 of the application) and about the
possibility of presence of the family members in the house, in the
wake of the allegation that the victim was sexually exploited for a
period of two years prior to filing of the complaint. A bare perusal
of the evidence of PW1 would show that the said witness has been
cross-examined on these aspects. PW1 has admitted that she was
not married to the petitioner. That she has not separated from her
husband, however she was residing with the petitioner with her
daughter. Even as far as the aspect about the presence of other
family members is concerned, PW2 has admitted that the house
consisted of only one room. Her mother and two brothers used to
sleep in the same room. Thus, a bare perusal of the evidence
would show that these witnesses have been cross-examined on the
aspects on which, it is now claimed that there is no crossexamination.
It further appears that these witnesses have also
been cross-examined on the point of reason for lodging of the
complaint, namely according to the petitioner, the complainant
was annoyed on account of the fact that the petitioner used to visit
his wife and children at Chimbel. That has also come in the crossexamination
of these witnesses.
14. In the case of Rajaram P. Yadav, (supra), the Hon'ble
Apex Court, after taking a survey of decisions holding the field,
has held thus :
“23. From a conspectus consideration of the above
decisions, while dealing with an application under
Section 311 Cr.P.C. read along with Section 138 of the
Evidence Act, we feel the following principles will have
to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the
new evidence is needed by it? Whether the evidence
sought to be led in under Section 311 is noted by the
Court for a just decision of a case?
b) The exercise of the widest discretionary power
under Section 311 Cr.P.C. should ensure that the
judgment should not be rendered on inchoate,
inconclusive speculative presentation of facts, as
thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to
be essential to the just decision of the case, it is the
power of the Court to summon and examine or recall
and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C.
should be resorted to only with the object of finding
out the truth or obtaining proper proof for such
facts, which will lead to a just and correct decision
of the case.
e) The exercise of the said power cannot be dubbed
as filling in a lacuna in a prosecution case, unless
the facts and circumstances of the case make it
apparent that the exercise of power by the Court
would result in causing serious prejudice to the
accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised
judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every
respect essential to examine such a witness or to
recall him for further examination in order to arrive
at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously
imposes a duty on the Court to determine the truth
and to render a just decision.
i) The Court arrives at the conclusion that additional
evidence is necessary, not because it would be
impossible to pronounce the judgment without it,
but because there would be a failure of justice
without such evidence being considered.
j) Exigency of the situation, fair play and good sense
should be the safe guard, while exercising the
discretion. The Court should bear in mind that no
party in a trial can be foreclosed from correcting
errors and that if proper evidence was not adduced
or a relevant material was not brought on record
due to any inadvertence, the Court should be
magnanimous in permitting such mistakes to be
rectified.
k) The Court should be conscious of the position that
after all the trial is basically for the prisoners and
the Court should afford an opportunity to them in
the fairest manner possible. In that parity of
reasoning, it would be safe to err in favour of the
accused getting an opportunity rather than
protecting the prosecution against possible
prejudice at the cost of the accused. The Court
should bear in mind that improper or capricious
exercise of such a discretionary power, may lead to
undesirable results.
l) The additional evidence must not be received as a
disguise or to change the nature of the case against
any of the party.
m) The power must be exercised keeping in mind
that the evidence that is likely to be tendered, would
be germane to the issue involved and also ensure
that an opportunity of rebuttal is given to the other
party.
n) The power under Section 311Cr.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 care, caution
and circumspection. The Court should bear in mind
that fair trial entails the interest of the accused, the
victim and the society and, therefore, the grant of
fair and proper opportunities to the persons
concerned, must be ensured being a constitutional
goal, as well as a human right.”
15. These are the principles to be kept in mind while
appreciating the individual facts and circumstances, in order to
find out whether recall of the witness is necessary. There cannot
be any straitjacket formula for exercise of such discretion, which
is judicial in nature. The court has to find that recall of the
witness is necessary for the just decision of the case which is a
sine qua non for exercise of such discretion. The learned
President, Children's Court, on consideration of the evidence of
these witnesses, has come to the conclusion, and to my mind
rightly so, that such a recall would not be necessary. In the case
of Narayan Gadekar (supra), the concerned Advocate had
accepted his inadvertence in not putting contradictions to the
witnesses, because of which, it was found that recall of the witness
was necessary. I, thus, find that the said case would be
distinguishable on facts. It is trite that mere change of Counsel
would not be a ground for recall of any witnesses. The test would
be whether such a recall is necessary for the just decision of the
case. In that view of the matter, I do not find any case for
interference. Consequently, Writ Petition is dismissed, with no
order as to costs.
C. V. BHADANG, J.
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