Niranjan Singh vs State Of U.P. And Another
2015 Latest Caselaw 3654 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 47
 

 
Case :- CRIMINAL REVISION No. - 3999 of 2015
 

 
Revisionist :- Niranjan Singh
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Avinash Chandra Srivastav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Harsh Kumar,J.

Heard learned counsel for the revisionist, learned AGA for the State and perused the record.

Learned counsel for the revisionist submits that the questions sought to be put before P.W. 10 Smt. Sarika Mohan are necessary to be asked with the witness for cross examination and the learned Additional Sessions Judge acted wrongly and illegally in rejecting the application of revisionist under section 311 Cr.P.C. for not giving reasons,due to which the proposed questions could not be put before P.W.10, when she was earlier cross examined at length by revisionist on 5.1.2012; that due to some inadvertent mistake, the questions could not be put to the witness and the P.W. 10 may be recalled for further cross examination in the interest of justice, for which the revisionist is ready to pay the cost or expenses, if any, imposed by the Court.

Per contra, learned AGA supporting the impugned order submitted that the impugned order is fully justified and there is no illegality or irregularity; that the impugned order itself shows that P.W. 10 was examined on 5.1.2012 and was cross examined by the revisionist at length, moreover, suggestion of having enmity with the revisionist was also put to the then Chief Development Officer, an I.A.S.; that the revisionist is accused in a trap case and has been caught red handed at the time of receiving illegal gratifications; that revisionist is delaying the disposal of trial on one lame excuse or the other, by moving one frivolous application or the other just to avoid his conviction; that earlier after long time, application for recall of P.W. 1 under section 311 Cr.P.C. was moved, which was rejected by trial court and the order was challenged before this Court by revisionist; that vide order dated 26.2.2013, the order of trial court was upheld by this Court with a direction to decide the sessions trial expeditiously within three months; that surprisingly enough the revisionist continued to linger on the disposal of sessions trial and after a period of more than one and half years from the date of order passed by this Court directing expeditious disposal, he moved another application with mala fide intentions, for recall of P.W. 10 for further cross examination; that in any case if the prosecution has failed to prove any fact, the accused is not required to fill up the lacuna; that the revisionist is avoiding final disposal of sessions trial and making abuse of process of court by his misconduct.

Before discussing the arguments and facts on record, I find it proper to reproduce the provisions of section 311 The Code of Criminal Procedure, 1973 herein below:-

"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."

The powers mentioned in section 311 Cr.P.C. above are very wide and are required to be exercised with restrain and judiciously in 2003 (47) ACC 290 in the case of Shyam Kumar and another Vs. State of U.P. and another, this Court has held that :-

".......the power of recalling witness is very wide which is required to be exercised with restrain and judiciously, not as a tool to fill up the lacuna. Change of counsel - certain questions left out from being asked from the witness, are not sufficient ground to recall the witness for re-examination.

Accused cannot have the witness recalled for re-examination as a matter of right. Extra ordinary provisions cannot be used as an after thought to fill in the gaps."

Upon hearing learned counsel for the parties and perusal of record, it is clear that P.W. 10 Smt. Sarika Mohan was examined on 5.1.2012 and was cross examined at length by the accused-revisionist, which is not disputed and is also clear from copy of her statement at Annexure No.3. It is also not disputed that case is fixed for final hearing since last about three years and after several dates fixed for final arguments in sessions trial, the revisionist moved an application under section 311 Cr.P.C. for recall of P.W. 1 for further cross examination, which was rejected by trial court and upon challenge by revisionist the order was upheld by this Court in its order dated 26.2.2013 directing for expeditious disposal of trial in three months. The revisionist has failed to show as to how and why he is avoiding the final hearing of sessions trial since last about three years and why after a period of more than one and half years of direction of expeditious and time bound disposal in three months, issued by this Court on 26.2.2013, he moved another application on 9.10.2015 for recall of P.W. 10 for putting four questions to her in further cross examination, as mentioned in the application (Annexure No.4). The application itself does not state any reason due to which the questions mentioned in application under section 311 Cr.P.C. were not put to the witness earlier when she was cross examined at length.

The above conduct of revisionist reflects that the revisionist do not have any respect for the courts and is flouting the orders of this Court of time bound expeditious disposal passed on 26.2.2013.

In view of the discussions made above, I have come to the conclusion that the learned Additional Sessions Judge/Special Judge, Gautam Budh Nagar has not committed any mistake in passing the impugned order and has rightly rejected the application under section 311 Cr.P.C. The learned counsel for the revisionist has failed to show any illegality, irregularity, incorrectness or impropriety in the impugned order rejecting his application under section 311 Cr.P.C. and there is no sufficient ground for interfering with or setting it aside the impugned order. The revision has got no force and is liable to be dismissed inlimine at the admission stage.

The revision is dismissed accordingly.

Let a copy of this order be sent to court below for expeditious disposal of the sessions trial within further period of two months without any adjournment to revisionist except on very cogent reasons and in case of repeated adjournments, it will be deemed that the revisionist is making misuse of liberty of bail and the court concerned shall pass necessary orders cancelling his bail and for taking him into custody.

Learned counsel for the revisionist submits that revisionist is ready to co-operate with the final disposal of sessions trial and will not seek adjournment and will get the hearing of sessions trial completed without any further adjournment.

Order Date :- 30.10.2015

Tamang