Raj Kumar v. State (NCT of Delhi), 2023 SCC OnLine Del 50

SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 1 Tuesday, May 23, 2023

Printed For: Suraj kumar jaiswal, Delhi University Law School
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
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2023 SCC OnLine Del 50
In the High Court of Delhi at New Delhi

(BEFORE SWARANA KANTA SHARMA, J.)
Raj Kumar … Petitioner;

Versus
State of Delhi and Another … Respondents.
Crl. Rev.P. 5/2023
Decided on January 4, 2023
Advocates who appeared in this case :
Mr. Kedar Yadav, Mr. Rahul Yadav and Mr. Sharun Daniel, Advocates
Mr. Naresh Kumar Chahar, APP for the State with SI Naveen Kumar,
P.S.I.P. Estate.
The Judgment of the Court was delivered by
SWARANA KANTA SHARMA, J. (Oral):—
CRL.M.A. 45/2023 (exemption)
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
CRL.M.A. 44/2023 (for delay)
3. For the reasons stated in the application, the delay of 60 days in
fling is condoned.
4. Application stands disposed of.
CRL. REV.P. 5/2023
5. The instant revision petition under Sections 397/401 read with
Section 482 of the Criminal Procedure Code, 1973 (“Cr.P.C.”) has been
filed by the petitioner against the order dated 26.07.2022 passed by
learned ASJ, Central District, Tis Hazari Courts, Delhi whereby the
learned Trial Court had rejected an application filed under Section 311
of Cr. P.C. for recalling of PW-3/prosecutrix for re-cross-examination in
a case FIR bearing no. 90/2019, registered at Police Station I.P. Estate,
Central District, Delhi for the offences punishable under Sections
328/376/354D/506/34/376D of the Penal Code, 1860 (“IPC”).
6. Issue notice. Mr. Naresh Kumar Chahar, learned APP for the State
accepts notice.
7. Brief facts of present case, as per the material on record, are that
the complainant is a student of Mata Sundari College, Delhi and on the
pretext of giving notes of B.Com Second year, the accused, who is
serving as a security guard in the college on a contractual basis, took
the complainant/prosecutrix to sports complex and forced himself upon
the prosecutrix and committed rape upon her. Further, it is alleged by
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the complainant that she was threatened to be killed by elder brother,

parents, three friends and an uncle of the petitioner. Initially an FIR
bearing no. 90/2019 was registered against the accused for the
offences punishable under Sections 376/328/506/34 and later Sections
354D/376D were added based on the complaint.
8. Learned counsel appearing for petitioner states that the applicant
is in judicial custody since 08.05.2019. It is further stated by the
learned counsel for the applicant that previous counsel of the applicant
could not cross-examine the prosecutrix to the extent of confronting her
with photographs which were taken with consent of the prosecutrix and
WhatsApp chats which reflect that there was consensual relationship
between the accused and prosecutrix. It is further stated by learned
counsel for applicant that the accused is in judicial custody since his
arrest in this case except for a brief period of one month when he was
granted bail. It is also stated by learned counsel that applicant was
unable to convey to his previous counsel regarding the WhatsApp chats
and the photographs which were in his possession and the same being
crucial evidence needs to be put to the prosecutrix for the purpose of
cross-examination.
9. On the other hand, learned APP for the State states that the
prosecutrix in this case has been cross-examined at length and a
detailed cross-examination has been conducted by the learned counsel
which runs into 9 pages. It is therefore, stated that the present petition
is liable to be rejected.
10. Heard.
11. Before going into the facts of the case, it would be appropriate to
reproduce Section 311 of the Cr. P.C., which reads as under:
“311. Power to summon material witness, or examine person
present.—Any Court may, at any stage of any inquiry, trial or other
proceeding under this Code, summon any person as a witness, or
examine any person in attendance, though not summoned as a
witness, or recall and re-examine any person already examined; and
the Court shall summon and examine or recall and re-examine any
such person if his evidence appears to it to be essential to the just
decision of the case.”
12. Recently, the Hon'ble Supreme Court in Varsha Garg v. The
State of Madhya Pradesh, 2022 SCC OnLine SC 986, held as under:
“32. This power can be exercised at any stage of any inquiry, trial
or other proceeding under the CrPC. The latter part of Section 311
states that the Court “shall” summon and examine or recall and re-
examine any such person “if his evidence appears to the Court to be
essential to the just decision of the case”. Section 311 contains a
power upon the Court in broad terms. The statutory provision must
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be read purposively, to achieve the intent of the statute to aid in the

discovery of truth.
******
37. The power of the court is not constrained by the closure of
evidence. Therefore, it is amply clear from the above discussion that
the broad powers under Section 311 are to be governed by the
requirement of justice. The power must be exercised wherever the
court finds that any evidence is essential for the just decision of the
case. The statutory provision goes to emphasise that the court is not
a hapless bystander in the derailment of justice. Quite to the
contrary, the court has a vital role to discharge in ensuring that the
cause of discovering truth as an aid in the realization of justice is
manifest.”
******
13. Also relying in the case of Zahira Habibullah Sheikh (5) v. State
of Gujarat, (2006) 3 SCC 374, which was reiterated in the recent case
of Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., (2008) 11 SCC
108, the issue was dealt by the Hon'ble Court regarding the allowing
the application of Section 311 and it was noted that:—
“28. The court is not empowered under the provisions of the Code
to compel either the prosecution or the defence to examine any
particular witness or witnesses on their side. This must be left to the
parties. But in weighing the evidence, the court can take note of the
fact that the best available evidence has not been given, and can
draw an adverse inference. The court will often have to depend on
intercepted allegations made by the parties, or on inconclusive
inference from facts elicited in the evidence. In such cases, the court
has to act under the second part of the section. Sometimes the
examination of witnesses as directed by the court may result
in what is thought to be “filling of loopholes”. That is purely a
subsidiary factor and cannot be taken into account. Whether
the new evidence is essential or not must of course depend on the
facts of each case, and has to be determined by the Presiding
Judge.”
(emphasis supplied)
14. Coming back to the present case, the FIR bearing no. 90/2019
has been registered for the offences punishable under Sections
328/376/354D/506/34/376D of IPC and prosecutrix was examined on
09.12.2021. On, 06.05.2022, an application under Section 311 of Cr.
P.C. was filed by the accused for re-call of prosecutrix for re-cross-
examination, however, the same was rejected by the learned Trial Court
vide order dated 26.07.2022 on the ground that cross-examination was
conducted by the learned counsel for accused in detail.
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15. Ensuring fair trial is a fundamental right of the accused under

Article 21 of the Constitution of India and in case of Rajendra Prasad v.
Narcotic Cell, (1999) 6 SCC 110 it was held that:—
“8. Lacuna in the prosecution must be understood as the inherent
weakness or a latent wedge in the matrix of the prosecution case.
The advantage of it should normally go to the accused in the trial of
the case, but an oversight in the management of the prosecution
cannot be treated as irreparable lacuna. No party in a trial can be
foreclosed from correcting errors. If proper evidence was not
adduced or a relevant material was not brought on record due
to any inadvertence, the court should be magnanimous in
permitting such mistakes to be rectified. After all, function of the
criminal court is administration of criminal justice and not to count
errors committed by the parties or to find out and declare who
among the parties performed better.”
(emphasis supplied)
16. After hearing learned counsel for both the parties and perusing
the material on record, this Court is of the opinion that WhatsApp chats
and the photographs are required to be put to the prosecutrix for
reaching just decision of the present case. The Court takes note of the
fact that the accused is in judicial custody since 08.05.2019 and it may
have been possible that he was not be able to assist his counsel or
hand over the six photographs and WhatsApp chats running into 13
pages. Though, change of counsel cannot be a ground for recalling a
witness for cross-examination as has been laid down in several
judgments of the Hon'ble Apex Court, however, depending upon
circumstances and facts of each case, Courts are vested with power
under Section 311 of Cr. P.C. to exercise the said discretion as
mentioned above. The photographs and the WhatsApp chats annexed
with the present petition are essential to be put to the prosecutrix for
the purpose of cross-examination which could not be put to her for the
reasons mentioned above.
17. In view of the above, the present petition is allowed on the
following conditions:
i) That the PW-3/Prosecutrix will be cross-examined in one single
opportunity and on same day preferably.
ii) The cross-examination will be limited only to confronting the
prosecutrix with the six photographs and WhatsApp chats running
into 13 pages which have been annexed with the present petition.
iii) Learned counsel will also provide advance copy of these six
photographers and WhatsApp chats running into 13 pages to the
learned APP for State and the counsel for the prosecutrix at least
15 days in advance.
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iv) The learned Trial Court, in the meanwhile, will continue to record
evidence of the other witnesses by the learned counsel for the
present accused/applicant.
v) A cost of Rs. 5,000/- is imposed upon the present
accused/applicant which will be paid to the prosecutrix in Court
before cross-examination.
18. In view of the above, the present petition stands disposed of.
19. This order will come into operation, in case the cost is paid by
the petitioner to the prosecutrix.
20. The judgment be uploaded on the website forthwith.
———
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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Tuesday, May 23, 2023

2023 SCC OnLine Del 50

In the High Court of Delhi at New Delhi

Raj Kumar … Petitioner;

the complainant that she was threatened to be killed by elder brother,

be read purposively, to achieve the intent of the statute to aid in the

15. Ensuring fair trial is a fundamental right of the accused under

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