Case Note & Summary
The petitioner, Chandrakant @ Kantu, filed a criminal petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) before the High Court of Karnataka, Kalaburagi Bench, challenging the order dated 10.01.2019 passed by the II-Additional District and Sessions Judge, Kalaburagi, in Special Case (POCSO) No.11/2018. The impugned order rejected the petitioner's application under Section 311 CrPC for recalling PW.1 (the victim) for cross-examination. The petitioner was facing trial for offences punishable under Sections 366(A) and 376(2)(i)(n) of the Indian Penal Code, 1860 (IPC) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The factual matrix reveals that on 06.12.2017, at about 9:00 p.m., the complainant (father of the victim, aged about 12 years) along with his family members had gone to sleep in the hall of their house. The victim was sleeping in a separate room. At that time, the petitioner allegedly entered the room, gagged the victim, and committed rape upon her. The victim raised an alarm, and the complainant and others rushed to the spot, but the petitioner escaped. A complaint was lodged, and after investigation, a charge sheet was filed. During trial, the victim was examined as PW.1 and her examination-in-chief was completed. However, the petitioner's counsel was not present at that time, and the victim was not cross-examined. Subsequently, the petitioner filed an application under Section 311 CrPC to recall PW.1 for cross-examination, which was rejected by the trial court on the ground that the application was filed belatedly and no valid reasons were shown. The High Court, after hearing the parties, observed that the right to cross-examine a witness is a valuable right and is part of a fair trial. The court noted that Section 311 CrPC confers wide discretion on the court to summon or recall any witness if it is essential for the just decision of the case. The court held that the trial court had erred in rejecting the application without considering the importance of cross-examination. The High Court allowed the petition, set aside the impugned order, and directed the trial court to recall PW.1 for cross-examination, subject to payment of costs of Rs. 1,000/- to the victim. The court clarified that the trial court shall ensure that the victim is not subjected to unnecessary harassment and that the cross-examination is conducted in a sensitive manner.
Headnote
A) Criminal Procedure Code - Section 311 CrPC - Recall of Witness - Right to Fair Trial - The accused sought recall of the victim (PW.1) for cross-examination after her examination-in-chief was completed, but the trial court rejected the application citing delay and lack of valid reasons. The High Court held that the right to cross-examine is a fundamental part of a fair trial and that Section 311 CrPC confers wide discretion on the court to summon or recall any witness if it is essential for the just decision of the case. The court allowed the petition, set aside the impugned order, and directed the trial court to recall PW.1 for cross-examination on payment of costs of Rs. 1,000/- to the victim. (Paras 1-10) B) Protection of Children from Sexual Offences Act, 2012 - Sections 4 and 6 - POCSO Act - Victim Protection - The case involved offences under the POCSO Act, 2012, and the victim was a minor aged about 12 years. The High Court balanced the victim's right to protection with the accused's right to a fair trial, allowing recall but imposing costs to discourage frivolous delays. (Paras 2-10)
Issue of Consideration
Whether the trial court was justified in rejecting the application under Section 311 CrPC for recalling the victim (PW.1) for cross-examination, and whether the High Court should exercise its inherent powers under Section 482 CrPC to set aside that order.
Final Decision
The High Court allowed the criminal petition, set aside the impugned order dated 10.01.2019 passed by the II-Additional District and Sessions Judge, Kalaburagi, in Special Case (POCSO) No.11/2018, and directed the trial court to recall PW.1 for cross-examination, subject to payment of costs of Rs. 1,000/- to the victim.
Law Points
- Section 311 CrPC
- recall of witness
- cross-examination
- fair trial
- POCSO Act
- victim protection
- delay in cross-examination
- inherent powers under Section 482 CrPC
