Right Of Accused To Recall Witness U/S 311 CrPC Can't Always Be Denied In Lieu Of Prosecutrix's Right U/S 33(5) POCSO Act: Orissa High Court

While allowing the revision petition, a Single Judge Bench of Justice S.K. Panigrahi held,

"The provisions of Section 33 laid down a general principle which must guide the trial Court and is similar to Section 309 Cr.P.C, being in the nature of laws to ensure speedy trial. However, by virtue of Sections 4 and 5 of Cr.P.C, Section 311 Cr.P.C shall prevail as no specific procedure is provided under POCSO Act for recall of a witness. Section 42A of POCSO Act clarifies that the Act is not in derogation of any other Law."

Brief Facts:

The Petitioner is the accused in a case pending in the court of the learned Ad hoc Additional District and Sessions Judge, (FTSC), Jeypore instituted by the Opposite Party No. 2 for alleged commission of offences punishable under Sections 376(2)(n)/450/506 of the IPC read with Section 4 of the POCSO Act. He made a prayer in this petition under Section 401 of the Cr.P.C. to set aside the order passed by the Ad hoc Additional District and Sessions Judge, (FTSC), Jeypore, which rejected his petition filed under Section 311 of the Code to recall P.Ws. 1, 2 and 3 for their cross-examination.

Contentions of the Petitioner:

Advocate Saroj Kumar Padhy, counsel for the petitioner contended that both P.Ws.1 and 2 are material witnesses. P.W.3 is the victim girl. Unless the petitioner-accused is afforded an opportunity to cross-examine the aforesaid witnesses, his rights shall be highly prejudiced. He placed reliance on the case of Dharam Pal v. State of Haryana and contended that the fundamental right of an accused is for a fair trial, which presupposes a fair investigation and in absence of fair investigation, there cannot be fair trial.

But, in this case the investigation has not been conducted properly and in the absence of proper investigation, the materials relied on by the prosecution are not sufficient to frame charge. Also, the case in hand is different as here further cross-examination has been denied to the petitioner for examining the prosecution witnesses.

He further argued that the intention behind enacting Section 33(5) of the POCSO Act is only to ensure that in a genuine case the child victim is not harassed, but the same cannot be used as a shield by the trial Court to deprive the accused of a right of proper cross examination and therefore a right of fair trial.

Contentions of the Respondent:

Additional Standing Counsel for the State Mr. M.K. Mohanty vehemently opposed the revision petition and submitted that the trial court has rightly rejected the application of the petitioner. He further contended that opportunity was given to the petitioner to cross examine P.Ws. 1 to 3. Again, the application for recall of the 14 years minor girl/victim is negating Section 33(5) of the POCSO Act which mandates that the child should not be repeatedly called to testify in a Court.

Court's Observation & Decision:

The Court relied upon the judgment in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd. wherein it was held by the Apex Court that it is mandatory for a Court to recall witness for further cross-examination if his evidence appears to be essential for just decision of the case. There is no bar for a court to recall a witness for further cross-examination. It was further held in that case,

"The section (Section 311, Cr.P.C) is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case."

The Court made a mention of Vimal Khanna v. State, 2018 SCC Online Del 11796, wherein the Delhi High Court has held that denial of opportunity to cross examine witnesses violates the Constitutional guarantee to an accused and vitiates fair trial. The same dictum has been followed in Mohd. Gulzar v. The State (GNCTD), 2018 (4) JCC 2291, wherein the Court held that since the right of cross examination is a valuable right, the child's right under Section 33(5) of POCSO Act has to be balanced with the aforesaid rights of the accused and thus, permitted one more opportunity to the accused to cross examine the alleged victim.

Further, the Court placed reliance on B. C. Deva @ Dyava v. State of Karnataka, where the Supreme Court has stressed upon the power to recall a witness at the instance of either party to ensure justice.

Accordingly, the Court came to the conclusion and observed,

"…this Court is of the view that cross-examination of the prosecution witnesses being an essential right of the accused, it is evident that non-cross-examination of the said witnesses will put the petitioner to prejudice. In such circumstances, it is not unjust to afford an opportunity to the petitioner to cross-examine P.Ws.1 to 3 by recalling them."

The Court directed the Ad-hoc Additional District & Session Judge (FTSC) to recall those witnesses for the purpose of cross-examination. At the same time, it was clarified that the Court shall take steps to recall the child witness at one go without disturbing him/her again and again.

Case Title: Pidika Sambaru v. State of Odisha & Anr.

Case No.: CRLREV No. 490 of 2021

Date of Judgment: 04 March 2022

Coram: Justice S.K. Panigrahi

Counsel for Petitioner: Advocate Saroj Kumar Padhy

Counsel for Opposite Party: Advocate M.K. Mohanty, Addl. Standing Counsel

Citation: 2022 LiveLaw (Ori) 21