Anil Thakur v. State Of Haryana
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1 ? " ?1! # 6?1 1 * 1)"( ( " # ))( ?( !#( ) # :t is well settled principle of law that victims in cases of sexual assault cannot be subjected to the ordeal of repeated cross-examinations where sufficient opportunity has already been granted to the accused at appropriate stage to cross examine the witnesses. Reliance in this regard can be placed upon observations made by High Court of Madras in CRL. O.P. No.211 of 2021 & Crl. M.P. No.93 of 2021 tilted as 'Krishnaraj @ Thangaraj v. Inspector of Police' decided on 08.01.
2021, wherein it was observed that the recall of witness on the ground that there is a new counsel who has been engaged by the petitioner and he found that certain vital questions have not been put to the witnesses, is not a good ground. Even in Jamaluddin Mohd. Shaban Ansari v.
been cited by learned counsel for the petitioner himself, a Bench of High Court of Bombay had declined to recall child witness of the same age in a case wherein the accused was facing charge under Section 302 of IPC. Then so far as PW-2 i.e. complainant is concerned, it is revealed that she too was examined in chief on 24.03.2022 and after seeking opportunity to engage a counsel to cross-examine her, her cross-examination was conducted on 31.03.2022 in detailed manner. The lacuna in the case of the petitioner cannot be allowed to be filled up in the garb of the application as filed by the petitioner. In this regard, I rely upon Mohanlal Shamji Soni v.
Union of India and another, AIR 1991 SC 1346, wherein the Hon'ble Supreme Court while cautioning against filling up lacuna, had observed that the criminal Court has ample power to summon any person as a witness or recall and reexamine any such person even if the evidence on both sides is closed but the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good coscience appear to be the only safeguards and that only requirement of justice command this examination of any person would depend upon the facts and circumstances of each case. It is well settled proposition of law that an application under section 311 Cr.P.C must not be allowed only to fill up lacunas in the case of the prosecution, or of the defence or to give an unfair advantage to the opposite party.
In Swapan Kumar Chatterjee's (supra), the Hon'ble Supreme Court has held that the power conferred under Section 311 Cr.P.C. should be invoked by the court only to meet the ends of justice and for strong and valid reasons and it should be exercised with great caution and circumspection.
conferred under Section 311 of Cr.P.C. upon the Court is to be invoked only for securing the ends of justice and it should be exercised in consonance with the provisions of the Code and principles of criminal law i.e. judiciously for the reasons stated by the Court and not arbitrarily and capriciously.
9.
On applying the aforementioned well established position of law to the peculiar facts and circumstances of the present case, I am of the considered opinion that the petition does not deserve to be allowed and no case has been made out for exercising powers under Section 311 of Cr.P.C. It is accordingly held that the learned trial Court had rightly observed that merely because a new counsel had been engaged, no right ipso facto is deemed to be created in favour of the petitioner to recall PW-1 and PW-2 for further cross-examination as prayed for, as that would result in travesty of justice. Keeping in view the discussions as made above, I am of the considered opinion that the impugned order does not warrant any interference. Accordingly, the same is upheld. +-
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