Raj Kumar vs State Of U.P. & Others
2014 Latest Caselaw 1680 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 46
 

 
Case :- CRIMINAL REVISION No. - 3196 of 2007
 

 
Revisionist :- Raj Kumar
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Revisionist :- Shyam Kishore Yadav
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Kalimullah Khan,J.

Taken up in the revised list but none turned up for the revisionist to press this revision on the point of admission. Learned A.G.A. is present. I have heard him and with his assistance, I perused the materials available before me including the order impugned dated 6.10.2007.

This Criminal Revision u/s 397/401 Cr.P.C. has been preferred by the revisionist Raj Kumar challenging the impugned order dated 6.10.2007, passed by learned trial court in S.T. No.13 of 2005 (State Vs. Ram Rishi Pal and others), whereby learned trial court has dismissed the application of the informant revisionist Raj Kumar made u/s 311 Cr.P.C. to summon two persons, namely, Ajit Dubey and Krishna Kant Agrawal and examine them as witnesses. The application was opposed on the ground that none of these persons were cited as prosecution witnesses in the charge-sheet. The proceeding of the trial was fixed for examining the accused u/s 313 Cr.P.C. because all the prosecution witnesses have already been examined but none of such witnesses examined, have thrown any light on the fact that aforesaid two persons, Ajit Dubey and Krishna Kant Agrawal, had seen the incident of murder of the brother of the informant and thereafter throwing the dead body in the bush, which was recovered on 23.8.2004, from the bush.

Having heard the learned counsel for the parties, learned trial court rejected the said application made u/s 311 Cr.P.C. on the ground that even at an earlier occasion on 20.7.2007, informant Raj Kumar had made an application u/s 311 Cr.P.C. to summon Shyam Singh and examine him. The said application was allowed by the court and Shyam Singh was summoned. His evidence was recorded in the court and thereafter all other witnesses of the prosecution have been examined. The date is fixed for examining the accused u/s 313 Cr.P.C. It is at this stage, as a means of delaying tactics, this application u/s 311 Cr.P.C. appears to have been made by the informant to summon the aforesaid two persons Ajit Dubey and Krishna Kant Agrawal to examine them on the ground that they have seen the incident. Since neither I.O. cited them as prosecution witnesses nor first informant Raj Kumar has ever deposed that these two persons have seen the incident nor there is any source of information that these witnesses have witnessed the incident and they are the witnesses of an eye account, hence, concluding that there was no justification to summon Ajit Dubey and Krishna Kant Agrawal as witnesses, rejected the application given u/s 311 Cr.P.C., vide order dated 6.10.2007.

It is this order dated 6.10.2007, which has been made impugned in this criminal revision.

The provision contained u/s 311 Cr.P.C. 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 be essential to the just decision of the case."

The perusal of the aforesaid provision of Cr.P.C., it is clear that it contains two parts. Its first part is discretionary while the second part is mandatory. The power of the Court given u/s 311 Cr.P.C. cannot be allowed to be exercised without any basis in the light of the provision of aforesaid section. There must be some substance prima facie to establish that the person sought to be examined as witness is concerned in any way with the commission of the crime and he may throw some light on the said incident. The grounds in application made u/s 311 Cr.P.C. could not satisfy the judicial mind of the Court below. Hence, learned trial court appears to have rightly rejected the said application because neither there was any evidence of the informant-revisionist nor the names of these two persons sought to be summoned/occurred in the deposition of prosecution witness examined during the course of evidence. There was no whisper or smell that these two persons witnessed the incident and moreover there is no source of information as to how the applicant-revisionist came to know that these two persons are the witnesses of an eye account and abruptly at the fag end of the trial at the stage of u/s 313 Cr.P.C. if he comes and moves an application u/s 311 CR.P.C. then the court is not bound to summon those two persons and examine them as witnesses only with a view to satisfy the whims of the informant, who does not allow the court to ensure the smooth disposal of the trial as expeditiously as possible.

The provisions contained u/s 311 Cr.P.C. attaches with it a legal sanctity. the Judge or the Courts are legally bound to exercise the discretion given in that section judicially and not arbitrarily. None of the parties to the proceedings should be allowed to harass the other party by adopting dilatory tactics or by moving applications one after the other on frivolous grounds because it certainly causes the prejudice to the other party. The expeditious disposal of the trial or speedy trial is the need of the day besides being the fundamental right of accused and and in order to achieve this object parliament has enacted the provisions of Section 309 Cr.P.C. which reads as under :-

"309. Power to postpone or adjourn proceedings.-(1) In every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day ubntil all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:........"

Speedy trial is a fundamental right implicit in the broad sweep and content of Art.21 of the Constitution. The aforesaid article confers a fundamental right on every person not to be deprived of his life and liberty under a procedure prescribed by law. If a person is deprived of his liberty under a procedure which is not reasonable, fair or just, such deprivation would be violative of his fundamental right under Art. 21. The procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. It is conceded that some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial becomes unduly long, fairness by Art. 21 would receive a jolt. The speedy trial is implicit in the spectrum of Art. 21 of the Constitution. Speedy trial is one of the facets of the fundamental right to life and liberty enshrined in Art.21 and the law must ensure "reasonable, just and fair" procedure which has a creative connotation.

From the conclusion that speedy justice is a fundamental right as an ingredient of Art. 21, the Supreme Court has advanced a step further and held that the provision of speedy justice is an obligation of the State, for, otherwise the operation of the legal system would not promote 'justice' which is assured in the preamble.

No illegality, incorrectness and impropriety appears to have caused in the order impugned, therefore, the revision lacks merit and stands dismissed.

Order Date :- 13.5.2014

m.a.