1. Rule. Mr.L.R. Pujari, learned Additional Public Prosecutor, waives service of notice of Rule on behalf of respondent-State.
2. Learned Sessions Judge, Visnagar has rejected application Exhibit 48 by order dated 04th October, 2012 filed by the original accused, for recalling of the witness under Section 311 of the Code of Criminal Procedure, 1973. The present Criminal Revision Application is directed against the said order.
3. The facts involved in the case are that First Information Report was registered on 09th February, 2012 upon complaint by one Jayantibhai Manabhai against the applicant- accused for the offences under Section 363 and 366 of the Indian Penal Code, 1860. As per the said complaint, the complainant with his wife, son and daughter Aarti aged 15 years, had gone to religious ceremony at Jain Temple in their village on 06th February, 2012 and having taken meals there, returned to their house. Therefore, the complainant went to labour work of colouring in the house of one Raval Haribhai of their village. The complainant’s wife came there and stated that daughter Aarti was missing after 03.00 pm in the noon. Upon inquiries, it was learnt from a relative that the accused Kiran alias Balo, son of Raval Kantibhai of the village had taken Aarti in a rickshaw to unknown place.
3.1 Thereafter, upon a statement of the victim that the accused had enticed her by promising for marriage and taken her to various places; that ultimately at Jamnagar on 07th February, 2012, he forcibly and against her wish sexually assaulted and had an intercourse in the room of a hotel, offence under Section 376 of the Indian Penal Code, 1860 was added. Ultimately Sessions Case No.13 of 2012 was registered. In course of trial, evidence of the victim was taken.
3.2 In the evidence of the victim (Exhibit 18), in the cross-examination she was asked inter alia questions regarding her having a love affair with one Shaileshji Thakore of the village, which she denied. The questions relating to Shaileshji having given a mobile phone to her, about accompanying her while they went to purchase clothes at Kheralu and further about she and said Shaileshji having stayed in Hotel Jay Jalaram at Jamnagar and Shaileshji having not produced identity proof, they were driven out from the hotel, etc. were asked. The victim denied those questions.
3.3 An application Exhibit 48 dated 04th October, 2012 under Section 311 of the Code was thereafter made inter alia submitting to the Court that in the cross-examination of the victim, the questions with reference to a person named Shaileshji Thakore was asked, however, subsequently it was noticed that the said person was not Shaileshji Thakore, but one Rohitji Thakore. It was therefore prayed to recall the witness. The learned Sessions Judge by one line order rejected the said application stating that as per oral submissions of the learned advocate, the parties had compromised and therefore, prayer to recall the complainant-victim cannot be granted.
4. Heard learned advocate Mr.Anvesh Vyas for the applicant and Mr.L.R. Pujari, learned Additional Public Prosecutor for the respondent-State.
4.1 It was submitted by the learned advocate for the applicant that there was no good reason for the learned Judge to reject the application of the accused which was under Section 311 of the Code for recalling of the witness. He submitted that apart the aspect that the reason supplied in one line order for rejecting the application that the compromise was arrived at, is not borne out anywhere from the record, nor there is any basis thereof, there is no prejudice to the complainant’s side if the permission to recall the witness-the victim is granted. He submitted that in the cross-examination of the witness sought to be recalled, by way of mistake questions were put with reference to a person of different name. It was for that purpose, the prayer to recall was made. It is submitted that the same was necessary for raising proper defence.
4.2 On the other hand, learned Additional Public Prosecutor submitted that the order rejecting the prayer to recall the witness is an interlocutory order, against which the Revision under Section 397 or Section 401 of the Code would not be maintainable. In addition to raising of the aforesaid preliminary contention, it was submitted by the learned Additional Public Prosecutor also that the learned Judge has given reason for rejection, that the order is discretionary and need not be interfered with by this Court. He submitted that provisions under Section 311 of the Code cannot be invoked to fill-in the lacuna in the defence by the accused.
5. At the outset it may be stated that the learned Judge has rejected the application with a one line cryptic order. In any view, what is stated in the order that the parties have compromised is not substantiated from any part of the record, neither of the learned advocate have submitted so before this Court.
5.1 Section 311 of the Code reads 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 bit to be essential to the just decision of the case.”
5.2 On bare reading of the above provision, it is seen that the Court to summon a witness or to recall and re-examine any person either being called for the first time, or any person already examined. The power, firstly, can be exercised by the Court at any stage of an inquiry, trial or any other proceedings. Secondly, the provision confers power not only to summon, but to re-summon and re- examine any witness or any person. The third feature of the provision is that the power can be exercised if from the evidence of such witness/person appears to be essential for just decision in the case. Fourthly, the power is exercisable by the Court suo motu as well.
5.3 In response to preliminary objection about maintainability of the revision, learned advocate for the applicant was right in relying on decision of this Court in case of Shaikh Madinabibi Mustafabhai Vs State of Gujarat (2005(2) GLH 7) wherein it is held that revision against the order under Section 311 of the Code is maintainable. In that case, a contention was raised against the locus-standi of the complainant to move such an application under Section 311 as well as on the maintainability of the revision application. It is held by this Court relying on an Apex Court’s decision in case of Thakur Ram Vs State of Bihar (AIR 1966 Supreme Court 911) that a private party can prefer an application for appropriate relief in a case which has proceeded on a police report, and the Court can consider it for substantive justice.
5.4 It was further observed in Shaikh Madinabibi (supra) that every interlocutory order is an interim order, but every interim order may not be interlocutory order. The non-maintainability of revision application under Section 397 or 401 of the Code against interlocutory order is required to be tasted on the touchstone of “test of finality”. It was held that the revision application against order under 311 was maintainable. Therefore, the preliminary contentions by learned Additional Public Prosecutor stands answered by what is laid down in Shaikh Madinabibi (supra) and therefore, they are rejected.
5.5 The object of Section 311 of the Code is to promote the cause of substantive justice. This provision is procedural and the procedural provisions are handmade of justice, not to be scuttled down in their operation by technical approach. The Orissa High Court in Pradipkumar Agrawal Vs State (1995 (1) Crimes 390) has observed, “The object underlying Section 311, Cr.P.C. 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 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.”
5.6 In Shaikh Madinabibi (supra), this Court further elucidated the nature and scope of Section 311 by observing that when an application under Section 311 is made before the Trial Court, it is not necessary to mention each detail expressing anxiety and/or need, nor it is necessary to mention the adequate material meticulously for the purpose.
6. In the present case, the accused has come up with a plea that while taking cross- examination of the complainant-victim, wrong questions were put by mistake and what is recorded thereupon was not correct as the different person was named in the questions put to the victim. Therefore, if recalling of complainant/victim as witness is not permitted, the alleged mistake may attain a finality on record. Even if it was a mistake as per the version of accused only, and he wanted to correct the same by seeking recall of the witness concerned, such opportunity should be given to him. In a criminal trial, accused should be given full opportunity to raise his defence to his satisfaction. It is not shown that by recalling the victim- witness, any prejudice would be caused to the complainant in the facts of the case.
6.1 While passing the impugned order, it is seen as elaborated above that learned Sessions Judge acted against the spirit and purpose of Section 311 of the Code. The order on the face of it was unreasonable order and did not reflect any ground, muchless relevant ground, and there was total non-application on part of the learned Judge.
7. In light of the above discussion and position of law obtained, the Revision Application deserves to be allowed. The order dated 04th October, 2012 below Exhibit 48 passed by the learned Sessions Judge, Visnagar in Sessions Case No.13 of 2012 is hereby set aside. Rule is made absolute.
(N.V.ANJARIA, J.) Anup