Allahabad High Court
Jagdish And Ors. vs The State Of U.P on 5 October, 2013
Bench: Saeed-Uz-Zaman Siddiqi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 14
Case :- U/S 482/378/407 No. - 4718 of 2013
Applicant :- Jagdish And Ors.
Opposite Party :- The State Of U.P
Counsel for Applicant :- M.S Khan
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Saeed-Uz-Zaman Siddiqi,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The applicants, through the present application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with a prayer to quash the impugned order dated 24.09.2013, passed by the learned Additional Sessions Judge/Special Judge, E.C. Act, Unnao in Sessions Trial No. 523 of 2011, arising out of case crime no. 1480 of 2011, under Section 302 IPC, relating to P.S._ Bangarmau, District- Unnao.
In view of the law laid down by the Hon'ble Apex Court in the case of Ronald Wood Mathams and Ors. vs. State of West Bengal, wherein it was held that an accused cannot be convicted without an opportunity being given to them to present their evidence and that having been denied to them, there has been no fair trial, and the conviction of the appellants, cannot stand. The result may be unfortunate. But it is essential that rules of procedure designed to ensure justice should be scrupulously followed, and Courts should be jealous in seeing that there is no breach of them. In order to secure ends of justice, a liberal approach is warranted on one hand and on the other hand delaying tactics should be curbed.
Later in the case of Mohanlal Shamji Soni vs. Union of India and Anr., reported in [1991 Supp (1) SCC 271], the Hon'ble Apex Court has ordered for recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. While holding this, Hon'ble the Apex Court has defined Section 540 of the old Cr.P.C. and has distinguished its earlier judgment in Mir Mohd. Omar vs. State of West Bengal [(1989) 4 SCC 436] and has held that it is the cardinal rule in the law of evidence that the best available evidence should be brought before the court. It is a well accepted and settled principle that a court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a court not only to do justice but also to ensure that justice is being done. In order to enable the court to find out the truth and render a just decision, the salutary provisions must be exercised at any stage of enquiry, trial ,other proceeding or recalling an officer or any person; because if judgments happen to be rendered on inchoate, inconclusive, and speculative presentation of facts, the ends of justice would be defeated.
In the recent judgment of Hon'ble the Supreme Court in the case of Natasha Singh vs. Central Bureau of Investigation, arising out of Criminal Appeal No. 709 of 2013, the Hon'ble Apex Court has relied upon and has considered earlier decisions in Mir Mohd. Omar vs. State of West Bengal (supra), Mohanlal Shamji Soni vs. Union of India and Anr.(supra), Rajeshwar Prasad Misra vs. The State of West Bengal & Anr., reported in [AIR 1965 SC 1887].
The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results.
Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and, the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as an inherent right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same.
It may be added at this stage that no formal prayer or application is required by the defence for such recall of witness because delivery of justice is the duty of the Court. The points raised before this Court. The points were raised before this Court may result in the acquittal of the petitioner, for which it shall be treated that an accused has gone scot-free because of the laches on the part of the Court. Fortunately, the petitioner, who is accused before the learned Sessions Judge has come up to this Court and there is no slightest chance of prejudice likely to be suffered by the prosecution. In case of cross-examination of the Investigating Officer, unnecessary delay should not be called by the impugned order in conclusion of the trial.
The petition is accordingly disposed of with a direction to the learned Sessions Judge to reconsider the application under Section 311 Cr.P.C. and summon the Investigating Officer in accordance with law before disposal of the Sessions Trial.
Order Date :- 5.10.2013
Nitesh
