- (1.) THIS petition is directed against the order dated 30 -11 -1998 passed by the Sessions Judge, Jammu rejecting the application filed u/s 540 Cr. P.C. for re -examination of the prosecutrix Miss Shindi Devi. The facts of the case are these. A case u/s 376 RPC was registered in Police Station Bishna against the petitioner on the written report of Mst. Dharmo Devi maternal grandmother of the prosecutrix. After investigations the police found that the allegation of rape against the petitioner was substantiated. He was accordingly sent up for trial. The charge u/s 376 RPC was framed against him on 30 -05 -1996 to which he pleaded not guilty. Statement of Mst. Shindi Devi, the prosecutrix was recorded by the court on 12 -08 -1996. An application for her re -examination was moved on behalf of the petitioner on 07 -05 -1997. The learned Sessions Judge dismissed the application by his order dated 07 -07 -1997. After the statements of all the witnesses were recorded, a fresh application to recall the prosecutrix for her re -examination was filed on 18 -11 -1998 on the ground that she was suffering from Schizophrenia and was not capable of understanding the meaning of what is stated in the court when examined as a prosecution witness. The learned trail court dismissed the application on the ground that the statement made by the prosecutrix is not indicative that she was unable to understand the question.
(2.) THE order has been assailed on the ground that the prosecutrix was before and at the time of occurrence suffering from Schizophrenia and continues to suffer from the same disease till date. So if this fact is not put to her in the cross -examination, it may result in miscarriage of justice, for her examination by the Board of Doctors to find out her mental condition is also necessary to rule out the possibility that her statement was not the product of external influence.
(3.) THE contention of Mr. JP Singh, learned counsel for the petitioner is that since the petitioner was denied bail there was no effective communication between him and his counsel which hampered the cross -examination of the prosecutrix. Failure to cross -examine her with regard to the treatment she got form Psychiatric Hospital, Jammu in the peculiar circumstances of the case was neither inadvertent nor deliberate, but only due to the absence of proper brief about the real facts. Since there is documentary support that she was getting the treatment from the Psychiatric, application for re -examination is neither an afterthought nor an attempt to delay or defeat the final outcome of the trial. The summoning of the prosecutrix for re -cross -examination occurring to Mr. Singh is necessary for the just decision of the case. The application has been opposed on behalf of the prosecution firstly on the ground that no revision lies against the order refusing to summon the witness and secondly no case is made out for exercising inherent jurisdiction of the court u/s 561 -A Cr P.C. because the order refusing to summon the witness is neither manifestly nor amounts to an abuse of the process of the court.;