1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR Abida vs. The State of Rajasthan & Ors. (S.B. CRIMINAL MISC. PETITION NO. 199/2006) Date of Order: 19/11/2008 PRESENTS HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. Mukesh Saini on behalf of Mr. Deendayal Khandelwal, for the petitioners. Mr. B.K. Sharma, Public Prosecutor for the State. Mr. N.A. Naqvi, for non-petitioner No. 2 to 4. By the Court: (Oral). This criminal misc. petition has been filed against the order dated 13.01.2006 passed by the learned A.D.J. (Fast Track) No. 2, Bharatpur, Camp-Kaman in Sessions Case No. 25/2005, whereby the application filed by the petitioner under Section 311 Cr.P.C. has been dismissed. 2. In the instant case, the statement of the prosecutrix- petitioner was recorded on 25.10.2005 during the trial, before the learned court below. Thereafter, the petitioner had filed an application under Section 311 Cr.P.C. for re-examining herself before the trial court. At that time, two more prosecution witnesses had been examined, subsequent to the examination of the prosecutrix. The learned trial Court after taking into consideration the facts and circumstances and having held that there is no basis for allowing the prayer of the prosecutrix for re- 2 examination, dismissed the application by the order impugned. 3. Thereafter, the petitioner filed the present misc. petition before this Court and the same was considered and decided on 20.02.2006. By the said order, the High Court had allowed the application under Section 311 Cr.P.c. and directed the trial court to record the statement of the petitioner afresh. Later on, non-petitioner No. 2 had filed an application for recalling of the order dated 20.02.2006 but the same was dismissed on 02.03.2006. Subsequently, non-petitioner No. 2 filed a Special Leave Petition No. (1805/2006), before the Hon'ble Supreme Court which was registered as Criminal Case No. (934/2007). In the special appeal, the Hon'ble Supreme Court, vide order dated 25.07.2007, set aside the order passed by the High Court on 20.02.2006 and directed that the petition filed before the High Court be heard on merits. 4. Hence, this criminal misc. petition has come up again before this Court for being considered on merits. The learned counsel for the petitioner has reiterated the averments made in the petition and stated that the learned trial court has erred in dismissing the application under Section 311 Cr.P.C. He has further submitted that the learned trial court was very much competent to consider and allow the application under Section 311 Cr.P.c. and to summon the witness. 5. On the other hand, the learned counsel for 3 respondent No. 2 to 4 has submitted that the learned trial court has rightly passed the order of 13.01.2006 after exercising the power vested in it. He has also submitted that in the instant case, the petitioner-prosecutrix had already been examined on 25.10.2005 and thereafter, two more prosecution witnesses were examined by the trial court. Subsequently, according to the counsel for the petitioner, the filing of the application under Section 311 Cr.P.C. was not tenable and there was no just reason for the same. Therefore, he has submitted that the learned trial court has properly exercised its powers and passed the orders under challenge because there was no legal basis for exercising the powers under Section 311 Cr.P.C. so as to recall the prosecutrix-petitioner in the witness box. In support of his submissions, the learned counsel for non-petitioners have relied upon the judgment passed by the Hon'ble Supreme Court in the case of Mir Mohd. Omar & Ors. vs. State of West Bengal, (1989) 4 SCC 436, wherein it has been held thus:- “15. The object of Section 278 is twofold: firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes, if any. If the correction suggested by the witness is one which the Judge considers necessary he will make it at once as required by sub- section (1) but if the correction is such that the judge does not consider necessary, sub- section (2) requires that a memorandum of the objection be made and the judge add his remarks, if any, thereto. In the present case, the learned trial Judge corrected all the typographical errors which he considered necessary but refused to carry out the substantive part of his deposition. The section is not intended to permit a witness to resile from his statement in the name of correction. The learned trial Judge 4 was justified in refusing to effect the change which he thought was intended to change the earlier version. He did not make a memorandum as the correction slip was unsigned and was not properly filed. Now, since the correction slip as well as the remarks of the learned trial Judge have become a part of the record, nothing more need be done as the provisions of Section 278 are substantially complied with.” “16. We equally see no justification for the High Court for giving liberty to the prosecution to file an application for re- examination of PW 34. In fact it will be seen from the operative portion of the impugned order the High Court proceeds on the assumption that PW 34 would be recalled for further examination. Here again it may be noted that the prosecution has closed the evidence. The accused have been examined under Section 313 of the Code. The prosecution did not at any stage move the trial Judge for recalling PW 34 for further examination. In these circumstances, the liberty reserved to the prosecution to recall PW 34 for re-examination is undoubtedly uncalled for.” 6. Furthermore, the learned counsel has placed reliance on the observations made by the Apex Court in the case of Anil Sharma & Ors. State of Jharkhand, (2004) 5 SCC 679, whereby the Hon'ble Court has osbserved in para 11 and 12 as under:- “11. So far as one of the points which was highlighted was that no cogent reasons have been given to discard the prayer made by PW-6 for his fresh examination. This aspect was specifically urged before the High Court and has been considered. It was held that the plea appeared to be afterthought and there was no cogent reason for accepting the prayer. It is true that in a given case the accused can make an application for adducing additional evidence to substantiate his claim of innocence. Whenever any such application is filed before the Court, 5 acceptability of the prayer in question is to be objectively considered. The High Court has elaborately dealt with this issue and concluded as to how the prayer was rightly held to be not tenable.” “12. It is not that in every case where the witness who had given evidence before Court wants to change his mind and is prepared to speak differently, that the Court concerned should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power is to be exercised in a routine or cavalier manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the Court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The Court ultimately can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in.” 7. After having considered the submission made by the rival parties and carefully going through the order passed by the learned trial court on 13.01.2006, I am of the considered view that no illegality or infirmity has been committed by the learned court below. Taking into consideration the facts of the present case where the statement of the prosecutrix-petitioner had already been recorded on 25.10.2005, there was no just cause 6 for exercising of powers under Section 311 Cr.P.C. for recalling such witnesses. As held by the Hon'ble Supreme Court in the case of Mir Mohd. Omar (supra) that in case of any error to be corrected then the procedure as given under Section 278 Cr.P.C. is only a way. So far as the examination of a witness is concerned, the power given under Section 311 Cr.P.C. has to be exercised only in matters where the recalling is required for specific and cogent reasons. The Hon'ble Supreme Court has time and again held that prayer for recalling cannot be accepted when the plea for the same is raised only as an afterthought for for the purpose of filling up the lacuna of the prosecution. 8. Consequently, this criminal misc. petition is devoid of merit and it is hereby dismissed. (RAGHUVENDRA S. RATHORE),J. tikam/-Jr.P.A. s-15