Rajendra Prasad Yadav & 2 Others vs State Of U.P. & Another
2017 Latest Caselaw 3149 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                     	                                                                                     A.F.R.
 

 
Court No. - 43
 

 
Case :- APPLICATION U/S 482 No. - 25288 of 2017
 

 
Applicant :- Rajendra Prasad Yadav &  others
 
Opposite Party :- State of U.P. & another
 

 
Counsel for Applicant :-  Sri Ramesh Kumar Shukla
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karuna Nand Bajpayee,J.

This application U/s 482 Cr.P.C. has been filed seeking quashing of the impugned order dated 2.8.2017 passed by the Addl. Sessions Judge/Fast Track Court No.1, Mau in S.T. No. 227 of 2003, State versus Rajendra Yadav and others, arising out of Case Crime No. 504 of 2003, under Sections 147, 149, 504 and 302 IPC, P.S. Sarai Lakhansi, District Mau, whereby the application of the applicants regarding summoning of defence witnesses has been rejected.

Submission of learned counsel for the applicants is that the witnesses who ought to have been produced in defence, have not been produced because the applicants were given wrong advice by the then counsel who was conducting the case and that is why those witnesses could not accordingly be produced. Learned counsel for the applicants during the course of arguments has tried to show that those witnesses who are now being sought to be produced in the court below, are not irrelevant witnesses. Their production in court will help to decide the issue involved in the case and to prove the innocence of the accused. Learned counsel for the applicants has tried to submit that there is no stage fixed to exercise the powers under Section 311 Cr.P.C. and this power can be invoked and exercised at any stage till the pronouncement of the judgement. Counsel in this regard has placed his reliance upon the two judgements one passed by the Apex Court in the case of Natasha Singh vs. C.B.I., 2013 (82) ACC 387 and another passed by this Court in the case of Barnali Baishya vs. State of U.P. and another, 2017(98) ACC 555.

Heard learned AGA representing the State and perused the record.

Perusal of the impugned order reflects judicial application of mind. There is absolutely no quarrel with the legal proposition that the power under Section 311 Cr.P.C. can be exercised at any stage. On this point the law has been settled long back but whether that power deserves to be exercised in any particular case or in this particular case, is a question of fact to be seen and decided by the court seized with the matter. Perusal of the record indicates that this Sessions trial relates to the year 2003 and is in the category of critically old cases. Fullest opportunity to produce the defence of his choice was accorded to the accused as it is so apparent on the face of record that the statements of the accused under Section 313 Cr.P.C. had been recorded long back in the year 2012. Thereafter, opportunity to produce defence witness was accorded to the accused which was also availed by them and as many as four defence witnesses were produced. After 8.2.2012 till 23.4.2014, that is to say, for more than two years the case remained at the stage of defence and it was only thereafter that the defence evidence was closed by the accused. Thereafter, continuously for three years the matter remained at the stage of arguments. In fact, the record also shows that the case was even argued at length and the judgement was reserved twice in the matter, once in the court where the matter was earlier pending and thereafter in the court where the matter was transferred where the arguments were again heard and the judgement was reserved. It is only thereafter that now the new wisdom has dawned upon the accused side and they are again seeking production of certain defence witnesses, which according to them, shall help them to prove their innocence. It is in this background that the trial court did not think it proper to exercise the powers under Section 311 Cr.P.C. Every witness desired by the prosecution or by the defence to be produced cannot be said or termed as an essential witness necessary to arrive at a just decision of the case. The accused or the prosecution in their estimate may feel that a particular piece of evidence or a particular witness may be relevant to further their cause. But it is not necessary that the court should or shall also always concur as a matter of rule with such estimate or such opinion. Every witness sought to be produced by the prosecution or the accused cannot be necessarily a witness essential to arrive at a just decision of the case. The court is required to exercise such power when in its own opinion the summoning of such witness is necessary or indispensable to reach the just decision in the case. Of course, the court has to have a pro-active approach and must remain open minded and must act judiciously in such matters. To allow the production of a particular witness by a particular side in exercise of its own statutory right to produce evidence to serve its own interest and in order to further its own cause is qualitatively different from the calling of a particular witness by the court in exercise of its own inherent right under Section 311 of Cr.P.C. That is why when either of the parties prays before the court to exercise power vested in it under Section 311 of Cr.P.C., it is for the court to see whether such jurisdiction can be justifiably invoked or not. In the peculiar facts and circumstances of this case, this Court does not feel persuaded to take a different view of the matter than the one which has been taken by the trial court. Ordinarily, the exercise of the powers under Section 311 Cr.P.C. should not be expected to serve or furnish the job of either that of the prosecution or that of the defence. The Judges should not be expected to act on behalf of the prosecution or the accused as their handy substitutes and step into their shoes. The powers under Section 311 Cr.P.C., are also not meant to patch up the loop holes of either side. The rights and the corresponding duties both of prosecution and the accused are to be performed by themselves and Section 311 Cr.P.C. is not a valid or ready make do substitute for the legal statutes which give enough power, right and opportunity to the prosecution as well as to the defence to produce whatever evidence they desire to produce in order to further their cause and prove their point. Of course, it goes without saying that the trial court can always summon a witness, if it thinks proper that the production of a particular witness is essential to arrive at a just decision and in fact in such circumstances it may be even mandatory for the court to exercise its judicial discretion in such matters. Unless this Court finds that the judicial discretion exercised by the trial court in favour or against a particular party is perverse, this Court is loathe to substitute lower court's discretion by its own. In any view of the matter, even if two views are possible that does not go to mean that the other view taken by the court below would necessarily be wrong. Unless this Court finds that the judicial discretion has been exercised in a perverse manner or is likely to cause miscarriage of justice or may cause any grave prejudice to either side, the discretion of the court below ought to be respected. The facts and circumstances of the case as have surfaced in the matter are sufficient to demonstrate that the applicants could have very well called the desired witnesses during the course of two years which is a long period enough to justify the exercise of his defence rights. Therefore, the view taken by the trial court can definitely not be said to be either perverse or illegal. There has to be some end to the opportunity which the prosecution or defence may claim. It may be the inherent right of the accused that whatever evidence they desire to produce they may produce but opportunity to produce defence evidence cannot be said to be either unlimited or unrestrained. The period of two years is more than enough period to produce defence evidence as has been given and provided to the accused in the present case. Even after closing of the defence evidence three years have further passed and much water has flown under the bridge since then and the case has already been reserved twice for judgement.

The case law cited by the applicants' counsel does not go very far to help them as both the cases are factually distinguishable. In fact, even if we cast of fleeting glance on the Apex Court's decision given in Natasha Singh's case (supra), it is not difficult to see that the maximum emphasis was laid by the counsel arguing that case on the fact that after closing the defence evidence without loosing any time, the appellant of that matter had preferred application seeking permission to examine three witnesses in her defence and had given reasons for their examination and there was an accentuated emphasis on the plea that there was no delay on the part of the appellant in moving the application and therefore, no prejudice would have been caused to the respondent if the same was allowed. It may be relevant to quote paragraph-4 containing the Senior Counsel's arguments appearing on behalf of the appellant before the Apex Court which reads as follows:-

" 4. Shri U.U. Lalit, learned senior counsel appearing for the appellant, has submitted that the FIR was lodged in 1998 and if the prosecution has taken more than a decade to examine 52 witnesses, and that if after the appellant had closed her defence, the other accused had laid evidence in his defence, and that thereafter, without losing any time, the appellant had preferred an application seeking permission to examine three witnesses in her defence, and had even given reasons for their examination, the same should not have been dismissed. The Trial Court has committed an error in appreciating the evidence which could have been provided by the said three witnesses in anticipation. It has also been stated that further, there was no delay on the part of the appellant in moving the application. Had this application been allowed by the courts below, no prejudice would have been caused to the respondent. Thus, the appeal deserves to be allowed."

The situation in the present case is factually different as has already been discussed in as much as the application moved on behalf of the accused had been given after a prolix lapse of three years which passed after closing the defence evidence and therefore, not much benefit can be derived by citing the aforesaid decision. In fact, Hon'ble Supreme Court has been pleased to observe in categorical terms in paragraph-7 of the judgement that "the court must satisfy itself that it was in fact essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case." Manifestly enough in the present matter the trial court did not find the production of the witnesses in question to be at all essential to arrive at the just decision of the case.

The other decision of this Court given in the case of Barnali Baishya's (supra) also does not go far to help the applicant because that was a case in which the prosecution wanted to produce certain evidence as an explanation to justify the delayed lodging of the F.I.R. on certain medical grounds and in the opinion of the court, it was found that such documents or witnesses were essential to arrive at a just decision of the case.

It is indeed so sad to see that the trial of a murder that took place in the year 2003 has not been concluded yet and even after a lapse of 14 years, judgment in the case has not seen the light of the day. The prolixity of the pendency of trials relating to gravest offences betrays out that there is something terribly wrong indeed in the whole system and calls for a deep introspection on everybody's part, who are involved in the administration of justice. It is not difficult to see in this matter as to how there is a deliberate attempt now on the part of accused to scuttle the process of law and procrastinate the matter still further for an indefinite period of time. The witnesses or the documents which accused seeks to produce were all known to them previously and there are no new facts and the knowledge acquired by accused relating to those witnesses or documents is neither new nor recent which may be treated as explanation for this inordinately belated application moved on behalf of the accused. Lack of bonafides is apparent on the face of the record in the peculiar circumstances of the case, which have already been discussed by this Court. Nobody can be allowed to have a right to veto the progress of the case at will and keep the system on hold in the name of exercise of some rights which the accused refused to exercise despite abundant opportunity which they had. The engagement of new counsel or his superior wisdom is not a very legitimate ground to persuade this Court for treating the same as a genuine explanation for the highly belated application moved by the accused.

It does go without saying that if the court shall feel that the summoning of any witness is required in order to arrive at the just decision of the case, it can always summon him. But that is for the trial court to see. To have the power to do something is different from adjudging the appropriateness of its exercise which is much more important and lies within the realm of the trial court seized with the matter.

In the aforesaid peculiar facts and circumstances of the case, this Court has no reason to take a different view in the matter and certainly it does not see any abuse of the court's process reflected by the impugned order.

The application lacks merit and stands dismissed hereby.

Order Date :- 10.8.2017

CPP/-