FACTS OF THE CASE:
- In the case of Mukesh Kumar v. the State of Rajasthan, a petition was filed under Section 482 Cr.P.C. by the petitioner against the order dated 20.08.2018 passed by the trial court, whereby, the application filed by the petitioner under Section 311 Cr.P.C.was rejected.
- The cross-examination of the prosecutrix took place on 23.01.2018. Later, on change of lawyer of accused, an application under Section 311 Cr.P.C. was filed by the petitioner for again cross-examining the complainant.
- The petitioner submitted that earlier cross-examination was done but negligently. Therefore, for the just decision of the case, the complainant should be recalled for cross-examination.
- The counsel for the respondent contended that the application filed by the petitioner was rightly rejected by the trial court and therefore, the misc petition must also be dismissed.
OBSERVATIONS OF THE HC:
- On 13 Nov 2019,the Rajasthan HC held, “In the opinion of this Court, change of lawyer cannot be a valid ground for again cross-examining the prosecutrix in this case”.
- The HC relied on the following principles laid down by the SC in the case of Rajaram Prasad Yadav vs. State of Bihar & Anr. (AIR 2013 SC 3081) on the exercise of application u/s. 311 :
- The exercise of power u/s. 311 Cr.P.C. cannot be called as filling in a lacuna in a prosecution case unless the facts and circumstances of the case make it clear that the exercise of power by the Court would result in the miscarriage of justice.
- It should be exercised judiciously and not arbitrarily.
OBSERVATIONS OF THE HC:
- The urgency of the situation, fair play and good sense should be the defence while exercising the discretion. If proper evidence was not presented or a relevant material was not brought on record due to any negligence, the Court should be generous in permitting such mistakes to be corrected.
- The Court should bear in mind that the trial is basically for the prisoners and permit them in the fairest manner possible. Therefore, it would be safe to be mistaken in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused.
- The Rajasthan HC while dismissing the petition held that no error was committed by the trial court in refusing to exercise the jurisdiction u/s. 311 Cr.P.C.
