Case Note & Summary
The petitioner, Chandrakant @ Kantu, was accused in Special Case (POCSO) No.11/2018 for offences under Sections 366(A) and 376(2)(i)(n) of IPC and Sections 4 and 6 of the POCSO Act, 2012, involving a 12-year-old victim. During trial, PW.1 (the victim) was examined and cross-examined, but the petitioner filed an application under Section 311 CrPC to recall her for further cross-examination, claiming that the earlier cross-examination was not effective due to the counsel's unpreparedness. The II-Additional District and Sessions Judge, Kalaburagi, rejected the application on 10.01.2019, stating that the witness had already been cross-examined and the application was filed belatedly. The petitioner then approached the High Court under Section 482 CrPC. The High Court observed that the right to fair trial under Article 21 of the Constitution includes the right to cross-examine witnesses effectively. The trial court's order was set aside, and the petition was allowed with a direction to recall PW.1 for cross-examination, subject to payment of costs of Rs. 1,000/- to the respondent.
Headnote
A) Criminal Procedure Code - Section 311 CrPC - Recall of Witness - Right to Fair Trial - The petitioner-accused sought recall of PW.1 (victim) for cross-examination, which was rejected by the trial court on grounds of delay and that the witness had already been cross-examined. The High Court held that the right to fair trial includes an opportunity to effectively cross-examine witnesses, and that the trial court's rejection was not justified as the accused had not been given a proper opportunity earlier. The petition was allowed and the impugned order set aside, directing recall of PW.1 for cross-examination on payment of costs of Rs. 1,000/-. (Paras 1-10)
Issue of Consideration
Whether the trial court erred in rejecting the application under Section 311 CrPC for recalling PW.1 (victim) for cross-examination, and whether the High Court should exercise its inherent power under Section 482 CrPC to set aside that order.
Final Decision
The High Court allowed the petition, set aside the impugned order dated 10.01.2019, and directed the trial court to recall PW.1 for cross-examination on payment of costs of Rs. 1,000/- to the respondent.
Law Points
- Section 311 CrPC
- Section 482 CrPC
- Right to fair trial
- Recall of witness for cross-examination
- POCSO Act 2012
Case Details
2019 LawText (KAR) (03) 44
Criminal Petition No.200156/2019
Shivasharana Reddy for Ustad Sadat Hussain (for petitioner), Maqbool Ahmed (HCGP for R1)
Chandrakant @ Kantu S/o Manasappa Kawaldar
The State Through Nelogi P.S. and Yamanappa S/o Nagappa Malge
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Nature of Litigation
Criminal petition under Section 482 CrPC challenging the trial court's order rejecting application under Section 311 CrPC for recall of witness.
Remedy Sought
Petitioner sought setting aside of the trial court's order dated 10.01.2019 and recall of PW.1 (victim) for cross-examination.
Filing Reason
The trial court rejected the application for recall of PW.1 for cross-examination, which the petitioner claimed was necessary for a fair trial.
Previous Decisions
The II-Additional District and Sessions Judge, Kalaburagi, in Spl.Case (POCSO) No.11/2018, rejected the application under Section 311 CrPC on 10.01.2019.
Issues
Whether the trial court was justified in rejecting the application under Section 311 CrPC for recall of PW.1 for cross-examination.
Whether the High Court should exercise its inherent power under Section 482 CrPC to set aside the impugned order.
Submissions/Arguments
Petitioner argued that the earlier cross-examination was not effective due to counsel's unpreparedness and that recall was necessary for fair trial.
Respondent-State opposed the petition, stating that the witness had already been cross-examined and the application was belated.
Ratio Decidendi
The right to fair trial under Article 21 includes the right to effectively cross-examine witnesses. The trial court's rejection of the recall application was not justified as the accused had not been given a proper opportunity earlier. The inherent power under Section 482 CrPC can be exercised to secure the ends of justice.
Judgment Excerpts
This criminal petition is filed under Section 482 of Cr.P.C., against the impugned order dated 10.01.2019 passed by II-Additional District and Sessions Judge, Kalaburagi, in Special Case (POCSO) No.11/2018 rejecting the application filed under Section 311 of Cr.P.C., for recalling PW.1 for the purpose of cross-examination.
The right to fair trial includes the right to effectively cross-examine witnesses. The trial court's rejection of the recall application was not justified.
Procedural History
The petitioner was accused in Spl.Case (POCSO) No.11/2018. During trial, PW.1 (victim) was examined and cross-examined. The petitioner filed an application under Section 311 CrPC to recall PW.1 for further cross-examination, which was rejected by the trial court on 10.01.2019. The petitioner then filed the present criminal petition under Section 482 CrPC before the High Court.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 311, 482
- Indian Penal Code, 1860 (IPC): 366(A), 376(2)(i)(n)
- Protection of Children from Sexual Offences Act, 2012 (POCSO Act): 4, 6
