Case Note & Summary
The applicant, Satpalsingh Surajsingh Bawari, a 19-year-old student, faced prosecution under the Indian Penal Code and the Protection of Children from Sexual Offences Act, 2012, before the Special Court for POCSO at Pune. During trial, the applicant's former advocate cross-examined prosecution witnesses PW 1 to PW 9 but failed to elicit material omissions, contradictions, or improvements. Additionally, the applicant was not produced before the court physically or via video-conferencing during the examination of PW 1 to PW 6, nor was he exempted under the CrPC. The applicant filed an application (Exhibit 73) before the Special Court seeking recall of PW 1 to PW 9 for further cross-examination, which was rejected on 2 September 2020. Aggrieved, the applicant approached the Bombay High Court under Section 482 CrPC. The High Court considered the submissions of the senior counsel for the applicant, who argued that the absence of the applicant during evidence violated Section 273 CrPC and that the former advocate's ineffective cross-examination caused serious prejudice, especially given the statutory presumptions under POCSO. The State opposed the application. The High Court held that the applicant's right to be present during evidence was fundamental and its violation, coupled with inadequate cross-examination, warranted recall of witnesses under Section 311 CrPC to ensure a just decision. The court set aside the Special Court's order and allowed the recall of PW 1 to PW 9 for further cross-examination, subject to the applicant paying costs of Rs. 5,000 to the State Legal Services Authority.
Headnote
A) Criminal Procedure - Right of Accused to be Present - Section 273 CrPC - Violation of Right - The applicant was not produced physically or via video-conferencing during examination of PW 1 to PW 6, nor was he exempted, causing serious prejudice to his defence - Held that the right under Section 273 CrPC is fundamental and its violation warrants recall of witnesses for just decision (Paras 5-6).
B) Criminal Procedure - Recall of Witnesses - Section 311 CrPC - Ineffective Cross-Examination - The former advocate failed to put omissions/contradictions/improvements to witnesses, and the applicant was absent during their examination - Held that recalling witnesses is necessary to prevent miscarriage of justice and does not amount to filling lacunae (Paras 5-6).
C) Evidence - Recall of Witnesses - Section 311 CrPC - Just Decision - The court has wide powers to summon or recall witnesses at any stage for a just decision - Held that in the facts, recalling PW 1 to PW 9 for further cross-examination is essential to ensure fair trial (Paras 5-6).
Issue of Consideration
Whether the applicant's right to be present during recording of evidence under Section 273 CrPC was violated, and whether the witnesses should be recalled for further cross-examination under Section 311 CrPC to prevent prejudice to the applicant's defence.
Final Decision
The High Court allowed the application, set aside the Special Court's order dated 2 September 2020, and directed recall of PW 1 to PW 9 for further cross-examination. The applicant was directed to pay costs of Rs. 5,000 to the State Legal Services Authority.
Law Points
- Right of accused to be present during evidence
- Recall of witnesses under Section 311 CrPC
- Ineffective assistance of counsel
- Prejudice due to absence of accused
- Statutory presumptions under POCSO
Case Details
2020 LawText (BOM) (12) 68
Criminal Application (Stamp) No. 3066 of 2020
Mr. Aabad H. Ponda, Sr. Advocate with Mr. Shailesh Kharat for the Applicant, Ms. S. V. Sonawane, A.P.P for the Respondent-State
Satpalsingh Surajsingh Bawari
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Nature of Litigation
Criminal application under Section 482 CrPC challenging the order of the Special Court for POCSO at Pune refusing to recall prosecution witnesses for further cross-examination.
Remedy Sought
The applicant sought setting aside of the Special Court's order dated 2 September 2020 and recall of PW 1 to PW 9 for further cross-examination.
Filing Reason
The applicant's former advocate failed to effectively cross-examine witnesses, and the applicant was not present during recording of evidence of PW 1 to PW 6, violating Section 273 CrPC, causing serious prejudice to his defence.
Previous Decisions
The Special Court for POCSO at Pune rejected the applicant's application (Exhibit 73) for recall of witnesses on 2 September 2020.
Issues
Whether the applicant's right to be present during recording of evidence under Section 273 CrPC was violated?
Whether the witnesses should be recalled for further cross-examination under Section 311 CrPC to prevent prejudice to the applicant's defence?
Submissions/Arguments
Applicant: The applicant was not produced during evidence of PW 1 to PW 6, violating Section 273 CrPC; former advocate failed to put omissions/contradictions/improvements; serious prejudice due to statutory presumptions under POCSO; recall necessary for just decision and does not amount to filling lacunae.
Respondent-State: Opposed the application, submitting that no interference was warranted in the impugned order.
Ratio Decidendi
The right of an accused to be present during evidence under Section 273 CrPC is fundamental, and its violation, coupled with ineffective cross-examination by the former advocate, causes serious prejudice to the defence. Under Section 311 CrPC, the court has wide powers to recall witnesses at any stage for a just decision, and such recall does not amount to filling lacunae.
Judgment Excerpts
By this application preferred under Section 482 of the Code of Criminal Procedure (`Cr.P.C'), the applicant herein is seeking the following substantive relief : “c. This Hon’ble Court may be pleased to kindly set aside the order passed by the Special Court for POCSO At Pune, dated 02-09-2020 refusing to recall P.W. 1 to P.W. 9 for further cross examination and may be pleased to allow the said application at Exhibit 73.”
He submitted that the applicant’s right to be present during the recording of evidence of witnesses i.e. PW 1 to PW 6 was violated under Section 273 Cr.P.C.
Procedural History
The applicant faced trial before the Special Court for POCSO at Pune under IPC and POCSO. During trial, the former advocate cross-examined PW 1 to PW 9 but failed to elicit material omissions/contradictions/improvements. The applicant was not produced during evidence of PW 1 to PW 6. The applicant filed an application (Exhibit 73) for recall of witnesses, which was rejected on 2 September 2020. The applicant then filed the present application under Section 482 CrPC before the Bombay High Court, which was heard and disposed of on 14 December 2020.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 273, 311, 482
- Protection of Children from Sexual Offences Act, 2012 (POCSO):
- Indian Penal Code, 1860 (IPC):
