Heeralal Vs. State of Rajasthan - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect -.....order1. this petition under section 482, cr. p.c. is directed against the orders dated 21-3-1997 3-4-1997 and 5-4-1997 passed by the learned additional sessions judge no. 3, jodhpur whereby the learned addl. sessions judge disposed of the three applications moved by the petitioner under section 311, cr. p.c.2. at the very outset, we may observe that normally, the petitioner was required to file three separate petitions against each of the above orders. the petitioner was, therefore, not justified in filing this petition against three orders passed on different dates by the learned addl. sessions judge as aforesaid. however, since this matter pertains to a murder reference pending before this hon'ble court, we deem it proper to dispose it of on merits.3. the brief facts leading to this.....

Judgment:
ORDER

1. This petition under Section 482, Cr. P.C. is directed against the orders dated 21-3-1997 3-4-1997 and 5-4-1997 passed by the learned Additional Sessions Judge No. 3, Jodhpur whereby the learned Addl. Sessions Judge disposed of the three applications moved by the petitioner under Section 311, Cr. P.C.

2. At the very outset, we may observe that normally, the petitioner was required to file three separate petitions against each of the above orders. The petitioner was, therefore, not justified in filing this petition against three orders passed on different dates by the learned Addl. Sessions Judge as aforesaid. However, since this matter pertains to a murder reference pending before this Hon'ble Court, we deem it proper to dispose it of on merits.

3. The brief facts leading to this petition are that while dealing with murder reference No. 1 of 1996 as also Criminal Appeals Nos. 407 and 418 of 1996 filed by the accused appellants against the judgement of the learned Addl. Sessions Judge No. 3, Jodhpur in sessions case No. 15 of 1996, this Court vide its order dated 7-8-1996 observed that there are certain points on which enquiry was required. Therefore, the matter was remanded to the learned trial Court. In pursuance of the above direction of this Court, the learned Addl. Sessions Judge exhibited material articles as also the report of the Forensic Science Laboratory and recalled PW-1 Heeralal and PW-22 Karansingh and discharged them after cross-examination.

4. On 3-3-1997 the learned counsel for the petitioner moved an application that since he was engaged recently, he would be requiring some time to study the matter. He therefore, prayed for 25 days time. On 6-3-1997, the learned counsel for the petitioner further moved an application for recalling all the witnesses mentioned in the application viz., PW-1, 3, 4, 5, 6, 11, 12, 15, 16, 17, 21, 22 and 25. By the last application dated 11-3-1997, the petitioner prayed for recalling the prosecution witnesses. It was submitted that a few important questions are to be asked to each of the prosecution witnesses in the interest of justice. It was further submitted that PW-1 Heeralal could not be administered oath. The learned Addl. Sessions Judge dismissed the above applications on the ground that two prosecution witnesses viz., PW-1 Heeralal and PW-22 Karansingh were recalled and re-examined and re-cross examined. The learned Addl. Sessions Judge further held that before Shri R.K. Gehlot started representing the petitioner Shri P. R. Choudhary, a Senior Criminal Lawyer, was representing the accused petitioner. The learned trial Court perused the statements of the above witnesses and came to the conclusion that in view of the directions of this Court, the accused-petitioner has been provided opportunity to cross-examine the above two witnesses and on the ground of change of Advocate, the witnesses cannot be re-examined, re-cross-examined or recalled. He further opined that it would be futile to examine the defence witnesses because nothing new has come on the record. The witnesses sought to be examined by the accused had no connection with the report of the Forensic Science Laboratory of the exhibition of the materials.

5. We have heard Mr. R. K. Gehlot, the learned counsel for the accused-petitioner and Mr. V.R. Mehta, the learned Public Prosecutor for the State and have very carefully gone through the record of the case.

6. Learned counsel for the petitioner has contended that he started representing the accused from 3-3-1997 and prior to that date, the accused expressed his desire to the Court that he had engaged another Advocate and despite that, the Amicus Curaie was allowed to cross-examine the above two witnesses who were recalled by the learned trial Court in pursuance of the directions of this Court. The learned counsel further submitted that after a thorough study of the case he was of definite opinion that in the interest of the justice, it would be necessary to put certain questions to the above witnesses which could not be asked by the learned counsel for the petitioner previously. However, the learned counsel has not pressed the application for recalling 17 defence witnesses.

7. On the other hand, the learned Public Prosecutor has opposed the above applications vehemently on the ground that in pursuance of the directions of this Court, de novo trial of the case cannot be permitted. For a very limited purpose, the case was remanded to the learned trial Court for conducting the enquiry. He has submitted that since the reports of the Forensice Science Laboratory and other material Exhibits could not be brought on record the parties were allowed to recall, re-examine and re-cross examine the above witnesses but the prosecution thought it proper only to recall PW-1 Heeralal and PW-22 Karansingh. According to him, the learned counsel for the petitioner was afforded an opportunity to cross-examine the above witnesses and hence, the learned Addl. Sessions Judge was justified in not allowing the petitioner to recall almost all the material witnesses for the purpose of cross-examination. He has contended that actually the report of the Forensic Science Laboratory and some other material exhibits were to be produced, which could not be produced at the time of the trial of the above case and it was with reference to the above evidence that the parties were allowed to recall, re-examine and cross-examine the material witnesses. The prosecution only thought it proper to recall PW-1 Heeralal and PW-22 Karansingh. He has submitted that the learned counsel for the petitioner was given an opportunity to cross-examine the above witnesses and except these two witnesses, the prosecution has not produced or recalled any other witness. Hence, the learned Addl. Sessions Judge was not justified in allowing the petitioner to recall almost all the material prosecution witnesses for the purpose of cross-examination.

8. He has also contended that though Section 311 Cr. P.C. is expressed in widest possible terms and does not limit the discretion of the Court in any way, the powers should be invoked by the Court only in the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Whether the Court would exercise its discretion to summon or recall the witnesses depends on the facts and circumstances of each case. As stated above, in the instant case, this Court directed the learned Addl. Sessions Judge to make an enquiry on particular grounds and also allowed him to recall the material prosecution witnesses and to afford an opportunity to the accused-petitioner to rebut the same. As stated above, the learned Addl. Sessions Judge conducted the enquiry and recalled only PW-1 Heeralal and PW-22 Karansingh and the accused petitioner was afforded an opportunity to re-cross-examine the above witnesses.

9. Having gone through the facts and circumstances of the case, we do not find any substance in the contention of the learned counsel for the petitioner that after a thorough study of the case, the learned counsel for the petitioner felt that certain important questions were omitted to be asked to various prosecution witnesses who were examined at the trial. The statement made by the accused is very ambiguous. Moreover, if the powers under Section 311, Cr. P.C. shall be exercised on this ground, that would result in increase of such type of litigations. We have also perused the statements of the witnesses sought to be recalled and we feel that most of the witnesses had turned hostile and the learned counsel for the petitioner cross-examined the other prosecution witnesses and put questions according to his discretion. The learned counsel has frankly admitted that Shri P.P. Choudhary is a senior criminal lawyer and he conducted this case to the best of his ability and tried to protect the interest of the accused. Hence, it cannot be said that he did not conduct cross-examination of the witnesses effectively or omitted to put certain questions.

10. However, as regards the defence witnesses, we feel that the learned Addl. Sessions Judge will again examine the list of witnesses filed by the accused and would decide about permitting the accused to produce such defence witnesses in the light of directions given by this Court.

11. With these observations, we do not find any force in this petition and it is hereby dismissed.