Allahabad High Court
Rakesh Mishra & 2 Others vs State Of U.P. & Another on 1 October, 2013
Bench: Virendra Vikram Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 47
Case :- CRIMINAL REVISION No. - 2422 of 2013
Revisionist :- Rakesh Mishra & 2 Others
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Jai Shankar Audichya
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Virendra Vikram Singh,J.
The revisionists, who are facing trial for the offence under Section 306, IPC in S.T. No.68 of 2010 in the Court of Additional Sessions Judge, Court No.7, Farrukhabad have challenged the order passed by the court dated 11.9.2013. By the impugned order the application of the accused-revisionists to cancel the statement of PW-3 Ravindra Nath Mishra has been rejected and the accused persons have been directed to cross examine the witness on the next date fixed.
Heard learned counsel for the revisionists, learned AGA and perused the record of the case.
It has been argued that the witness Ravindra Nath Mishra, who has been granted permission to be examined as witness on 13.4.2013 and his examination in chief was recorded as a witness is not named in the FIR nor has he been nominated as witness in the charge sheet. Thus, the order of the Court for examination of the witness was bad in law and the statement of PW-3 Ravindra Nath Mishra should not have been read in evidence. Reliance was placed on the case law of Vijay Kumar Vs. State of U.P. and another, 2012(1) JIC 630.
The contention which appears on behalf of the accused-revisionists is that any person not nominated as witness in the charge sheet cannot be examined nor can be permitted to be examined as prosecution witness. It is proper to quote the provisions of Section 231, Cr.P.C. where in a Sessions trial the prosecution produces the evidence relied upon by it. The Section reads as follows:-
"(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination."
A bare perusal of the Section shows that it is obligatory for the Sessions Judge holding the trial of the case to record all such evidence as may be produced by the prosecution. In this provision no restriction has been implemented on the prosecution that it can produce the witnesses nominated in the charge sheet or in the list of witnesses in a complaint case. The intention of the legislature appears to be quite evident that all the evidence that the prosecution intends to be produced be recorded and full opportunity be given to the accused persons to cross examine them. There is nothing in Section 231, Cr.P.C., which provides for the restriction to the prosecution to produce the witnesses arrayed as such in the charge sheet. The Section also does not provide any embargo for the prosecution to produce any witness beyond the list given in the charge sheet. There is no provision or any restriction on the prosecution even to seek permission for recording the statement of PW-3 Ravindra Nath Mishra, but from the facts it appears that the examination in chief of the witness was recorded after getting permission from the trial Court. Thus, the accused-revisionists also cannot claim any prejudice or that they were put to surprise by the examination of Ravindra Nath Mishra as witness. At this juncture it is proper to mention the mandate of the Apex Court in the case of Rama Chaudhary Vs. State of Bihar in Criminal Appeal No.619 of 2009, decided on 2.4.2009. It has been held by the Apex Court that "it is also clear from Section 231 of the Cr.P.C. that the prosecution is entitled to produce any person as witness even though such person is not named in the earlier charge-sheet."
Thus, it is evident that the trial Court has not committed any illegality in recording the statement of PW-3 Ravindra Nath Mishra. By the impugned order the trial Court has granted time to the accused persons to cross examine the witness PW-3, whose statement in chief was recorded on 13.4.2013. There does not appear any illegality or irregularity in the impugned order.
The case law that has been relied upon on behalf of the revisionists is not at all applicable in the present set of facts. The case law relates to recall of witness while exercise of powers under Section 311, Cr.P.C., which is not the situation in the present case. An order for examining of witness under Section 311, Cr.P.C. is the privilege of the Court whereas examination of any prosecution witness in a Sessions trial under Section 231, Cr.P.C. is the privilege of the prosecution to produce the witness. The case law relied upon by the revisionists is not applicable to the present set of facts. The revision lacks merit and is liable to be dismissed.
Revision is, hereby, dismissed.
The trial Court shall proceed with the trial of the case expeditiously after ensuring the cross examination of PW-3 Ravindra Nath Mishra.
Office is directed to communicate the copy of the present order to the trial Court at the earliest, so that the court may proceed with the trial and be not mislead simply with the pendency of the present revision before this Court.
Order Date :- 1.10.2013
T. Sinha
