Heard Shri Chhote Lal Yadav, learned counsel for the applicant, Shri Hari Prakash Yadav, learned counsel for the opposite party nos.2 and 3 as well as Shri Rajesh Kumar, learned A.G.A. for the State and perused the record.
The instant petition has been filed by the applicant/accused with the prayer to quash impugned order dated 09.12.2020 passed in Sessions Trial No.166/2018 (State v. Pintoo Pal) by the Special Judge (P.O.C.S.O. Act) - I, Faizabad, arising out of Case Crime No.340 of 2017, under Sections 354, 504 I.P.C. and Section 7/8 of the P.O.C.S.O. Act, Police Station Tarun, District Faizabad/Ayodhya, whereby the prayer of the applicant for recalling of the prosecutrix for the purpose of further cross examination has been rejected by the trial court.
Learned counsel for the applicant submits that the trial court by passing the impugned order has committed manifest illegality in not considering the fact that the cross examination was not done with the prosecutrix on the points mentioned in the application moved under Section 311 Cr.P.C. and thus it was in the interest of justice that an opportunity should have been provided by the trial court for the purpose of further cross examination with the prosecutrix.
It is further submitted that by not recalling the prosecutrix for the purpose of further cross examination, the applicant/accused shall be prejudiced in his defence and thus, the order passed by the trial court is nothing, but the abuse of process of the law and the same be quashed.
Shri Hari Prakash Yadav, learned counsel for the opposite party nos.2 and 3 submits that there is an element of settlement existing between the parties, however, there is no illegality in the order of the trial court.
Learned A.G.A. on the other hand submits that detailed cross examination has been done by the applicant/accused with the prosecutrix comprising of 8 pages and the points which have been mentioned in the applicant has already been dealt with in the cross examination of the prosecutrix and therefore the application moved by the applicant/accused was misconceived and was rightly rejected by the trial court.
Having heard learned counsel for the parties and having perused the record, it is evident that on 24.04.2019, the examination-in-chief of the prosecutrix was recorded and as the cross examination could not complete on that day, the same was deferred for next date, however, on 16.05.2019 detailed cross examination of the prosecutrix was done on behalf of the applicant/accused.
Having gone through the whole text of the examination-in-chief and cross examination of the prosecutrix, it is evident that all the points, which have been mentioned in the application of the applicant/accused, have been dealt with by learned counsel for the applicant/accused and on all these points, the prosecutrix has been cross examined and thus it could not be said that by rejection of the prayer of the applicant/accused, he would be prejudiced in his defence.
It has been also submitted on behalf of the opposite party nos. 2 and 3 that there is an element of settlement in the instant matter. The law in this regard is very clear that the court would not be a privy for the purpose of any perjury and thus in the opinion of this Court no witness should be recalled only for the purpose of resiling from his/her previous statement.
Keeping in view all the facts and circumstances of the case, I do not find any illegality in the order of the court below and the application appears to be misconceived and the same is dismissed.
However, it is provided that rejection of the prayer of the applicant/accused under Section 311 Cr.P.C. for recall of the prosecutrix for the purpose of further cross examination shall not preclude the trial court to exercise his jurisdiction in the second part of Section 311 Cr.P.C., wherein it is provided that if summoning, recall or re-examine of any witness or person appears to be essential for the just decision of the case, the same may be recalled or re-examined or examined by the trial court.
Order Date :- 27.8.2021 Anupam S/-