Top News Headlines 8th Mar 2022: Prosecutrix’s Right U/S 33(5) POCSO Vs Right Of The Accused To Recall Witnesses U/S 311 CrPC: Know What The Odisha HC Has To Say

Prosecutrix’s Right U/S 33(5) POCSO Vs Right Of The Accused To Recall Witnesses U/S 311 CrPC: Know What The Odisha HC Has To Say

• The Hon’ble Odisha HC has, in Pidika Sambaru vs State of Orissa and anr has held that the right of the accused to recall witnesses under section 311 of CrPC cannot always be denied merely on the ground of the right of the prosecutrix under section 33(5) of the POCSO Act which provides that the Special Court has to ensure that the child (prosecutrix) is not called to the Court repeatedly.
• Section 311 of CrPC empowers the trial Court to summon any person as a witness, or recall and re-examine any person who has already been examined. The Court can do so at any stage of the investigation, inquiry or trial, if the Court considers that the evidence of such a person is essential to the just decision of the case.
• In the instant case, a revision application was filed by the accused against the order of the Additional District and Sessions Judge rejecting his petition filed under section 311 of CrPC to recall two of the prosecution witnesses for their re-examination. The applicant/accused was accused of committing an offense under section 376(2)(n)/450/506 of IPC read with section 4 of POCSO.
• The Counsel for the applicant/accused contended that the cross-examination of the two witnesses, if disallowed, would be highly prejudicial to the interests of the accused. Reliance was placed upon the decision of the Apex Court in Dharam Pal vs. State of Haryana wherein it was held that fair trial is the fundamental right of the accused and in the absence of a fair investigation, there can never be fair trial.
• It was further contended by the Counsel for the accused that the intention behind section 33(5) of the POCSO Act was to prevent the harassment of the child victim, but the same should not be used as a shield by the prosecution to deprive the accused of his right to proper cross-examination and in consequence, the right of a fair trial.
• The revision petition was opposed by the Counsel for the State, it was submitted that the recalling of the victim would stand in clear violation of Section 33(5) of the POCSO Act which mandates that the child victim should not be called to repeatedly testify before the Court.
• The Hon’ble HC, at the outset, relied upon the decision of the Hon’ble Apex Court in Godrej Pacific Tech. Ltd. vs Computer Joint India Ltd. wherein the Court held that the power granted to the Court is to be divided into two parts, the first part empowers the Court to examine any person or recall and re-examine any person who has already been so examined, while the second part states that the Court has to do the aforesaid if it appears to the Court that the same is essential for the just decision of the case. The first part uses the word ‘may’ while the second part uses the word ‘shall’, meaning thereby that the Court will have to mandatorily use its power under section 311 if it appears necessary for the just decision of the case.
• The Court also relied upon the case of Mohd. Gulzar vs The State (GNCTD), 2018 wherein it was observed that the right of cross-examination of the accused being a valuable right, the same has to be balanced with the right of victim under section 33(5) of POCSO Act. Thus, the accused was afforded another opportunity to cross-examine the victim.
• The Court also placed reliance on B.C. Deva @ Davya vs. State of Karnataka where the SC had stressed upon the right of the accused to re-examine the victim to ensure fair trial. The Court observed that the right of examination of prosecution witnesses is an essential right of the accused and disallowing the same would result in causing him serious prejudice.
• The Hon’ble HC, thus, directed the Additional District and Sessions Judge to recall the two prosecution witnesses for the purpose of cross-examination.

Magistrate Can't Back Out After Passing Order Under Section 156 (3) CrPC; Obligation To Ensure Impartial Trial: Allahabad HC

• In Madhav Singh v. the State of UP (2021), the Hon'ble Allahabad HC observed that after granting an order under Section 156 (3) CrPC, the Magistrate cannot back out of the matter, and the Magistrate is responsible for ensuring that the inquiry is conducted impartially and fairly.
• In this instance, the Hon'ble HC was dealing with a Section 482 CrPC plea under Sections 420, 467, 468, 471, 120-B, and 409 IPC, with the aggrieved party claiming that his case was not being investigated properly. The applicant further requested that the Chief Judicial Magistrate of Mathura be instructed to send the statement on affidavit and other documentary evidence filed on his behalf to the Investigating Officer and guarantee an unbiased and fair investigation. Furthermore, it was claimed that even though the complainant's and witnesses' affidavits were filed with the CJM, Mathura, with a request to send them to the Investigating Officer, the request was denied in an order dated September on the ground that the informant himself must produce his affidavit before the competent authority under section 173(2) CrPC.
• The essential sections to this case are mentioned below:
• Section 420 of the IPC covers cheating and dishonestly rendering the delivery of property.
• Section 467 oversees the income tax remedy for leases with prepaid rent.
• Section 468 applies to cases involving forgery for the purpose of cheating.
• Section 471 of IPC articulates regarding using a forged document as genuine.
• Section 120(b) provides retribution for criminal conspiracy.
• Section 409 of IPC deals with a criminal breach of trust by a public worker, a banker, a merchant, or an agent, among other things.
• Section 482 of the CrPC talks about limiting or affecting the High Court's inherent rights to issue orders that may be required to carry out any necessary action made under this Code to prevent abuse of the judicial process or otherwise ensure the interests of the interests’ justice.
• Section 156 (3) of the CrPC, 1973 states that only in the case of a cognizable offense can the Magistrate use the section, as mentioned earlier, to instruct the police to begin an investigation.
• An instance in which the Court was permitted to use Section 156 (3) CrPC was the case of Abhinandan Jha and others vs. Dinesh Mishra 1967(4) ACC 306 SC. Here the Hon'ble Apex Court decided that the Magistrate is not obligated to accept the report filed by the police under section 173(2) CrPC if he disagrees with the police's opinion.
• In another similar case, Sakiri Vasu Vs. State of UP and others 2008 (60) ACC 689, the Hon'ble Apex Court held that "The Magistrate's power to order further investigation under section 156(3) is separate from the Investigating Officer's power to continue investigating the case even after submitting his report under section 173(8). As a result, even after the police present their final report, the Magistrate might order the inquiry to be reopened." The Hon'ble Apex Court had reviewed this issue in several instances, and it consistently maintained that the Magistrate has the authority to issue an order for further inquiry on the final report.
• With respect to the aforementioned cases, the Hon'ble HC stated that the Magistrate could have forwarded the affidavits filed on behalf of the applicant to the Investigating Officer if the complainant had alleged that the IO had not recorded the statements of the complainant and witnesses.
• Therefore, the Hon'ble HC rejected the CJM's decision, stating that the Magistrate cannot withdraw from the case after granting an order under Section 156 (3) CrPC, and instructed the CJM to send the applicant's affidavits to the Investigating Officer and guarantee a fair inquiry.

Condonation U/S 5 Limitation Act Not Applicable To Suits; Must Be Strictly Construed: SC

• Justices Indira Banerjee and JK Maheshwari, in F. Liansanga vs. Union of India (2018), have observed that the power of the courts to condone delay as provided in Section 5 of the Limitation Act, 1963 does not extend to suits. While upholding the judgement of the Guwahati HC, the Apex Court acknowledged the fact that the limitation might adversely affect the interests of a particular party but when the statute is clear and unambiguous its provisions have to be strictly construed.
• In this instance, the plaintiff sought compensation for stones being taken out of his land by authorities to build a public road. The Trial Court under Order 7 Rule 11 of CPC rejected plaint on the ground of Limitation. The plaintiff filed another suit along with an application for condonation of delay of 365 days under Section 5 of Limitation Act, 1963, which was allowed by the Trial Court. The Guwahati HC, setting aside the aforementioned order, held that Section 5 applies only to appeals and applications and not to suits.
• The essential sections, acts, and rules to this case are mentioned below:

1. â–ª Section 5 of the Indian Limitation Act, 1963 is an empowering clause designed to aid plaintiffs who have failed to do an act within the period set out in various laws enacted.
2. â–ª The Order VII Rule 11 of the Code of Civil Procedure elaborates on the rejection of plaints. In certain instances, the courts dismiss the plaints for various reasons.
3. â–ª Section 5 of the Limitation Act, which allows for the extension of the limitation period, applies to all applications save those covered by Order XXI of the Civil Procedure Code.

• In a similar case, Popat Bahiru Govardhane & Others V. Special Land Acquisition Officer & Anr., published in (2013) 10 SCC 765, the appellant's property was notified under the Land Acquisition Act, and an award was made for it. The appellant did not submit an objection application at the time but did so afterwards. The appellant then requested a certified copy of the award, which was received four days later. The Special Land Acquisition Collector denied the application because it was filed with a four-day delay. Aggrieved by the result, the appellant filed an appeal in HC, which was dismissed and led to an appeal in SC. By referring to another significant case, State of AP & Anr. v. Marri Venkaiah, in which the SC examined the precedents and rejected the appeal, the Hon'ble Court held that it is a recognized legal notion that the law of limitation may harshly affect a particular party, but it must be implemented with all its rigor when the statute so specifies. It further stated that on equitable considerations, the Court has no jurisdiction to extend the statute of limitations.
• In another notable case, The Martin Burn Ltd. v. The Corporation of Calcutta and Rohitas Kumar & Ors. v. Om Prakash Sharma & Ors., it was contended by the Hon'ble Court that the outcome resulting from a statutory provision is never evil and that a court has no authority to disregard such provision in order to alleviate what it judges to be distress caused by its operation.
• The ruling in J. Thansiama vs. the State of Mizoram was also cited in this case, noting that the Limitation Act took effect in Mizoram on January 21, 1972. The bench held that "The High Court correctly held that the Limitation Act applied in the State of Mizoram and that a reading of Section 5 of the Limitation Act, 1963 clearly showed that Section 5 did not apply to suits, but only to appeals and applications, except for applications under Order XXI of the Civil Procedure Code."
• Therefore, the Hon'ble HC rejected the plea with respect to the aforementioned cases.