Vinod vs State Of U.P. And Anr
2018 Latest Caselaw 4105 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
Court No. - 40
 

 
Case :- APPLICATION U/S 482 No. - 43806 of 2018
 
Applicant :- Vinod
 
Opposite Party :- State Of U.P. And Anr
 
Counsel for Applicant :- Rajendra Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Singh,J.

1. Heard Sri Rajendra Kumar Pandey, learned counsel for the applicant and Sri Ashutosh Kumar Sand, learned Additional Government Advocate Ist assisted by Ms. Manju Thakur, A.G.A. Ist for the State.

2. This application under Section 482 Cr.P.C. has been filed by the applicant to quash the order dated 9.06.2017 passed by Additional Sessions Judge, Court No.11, Ghaziabad in Sessions Trial No. 167 of 2014 (State Vs. Vinod), under Section 304 I.P.C., Police Station- Indirapuram, District- Ghaziabad, whereby application dated 2.05.2017 (24-ख), under Section 311 Cr.P.C. of the applicant to recall P.W.-1, Chandan Paswan has been rejected by the trial Court.

3. The brief facts of the case are that on 26.03.2013 First Information Report was lodged by opposite party No.2 against the applicant and two other co-accused under Section 304 I.P.C. The Investigating Officer after investigation has submitted chargesheet dated 25.05.2013 against the applicant under Section 304 I.P.C., on which applicant is facing Sessions Trial No. 167 of 2014 (State Vs. Vinod), under Section 304 I.P.C. before the Additional Sessions Judge, Court No.11, Ghaziabad. In the trial statement of P.W.-1, Chandan Paswan was recorded on 3.02.2016 and lengthy cross-examination was done on behalf of accused applicant. On 2.05.2017 applicant has moved an application under Section 311 Cr.P.C. before the trial Court with a prayer to recall the P.W.-1, Chandan Paswan for putting relevant questions to him. The said application dated 2.05.2017 of the applicant has been rejected by the order dated 9.06.2017, which is under challenge before this Court.

4. It is submitted by learned counsel for the applicant that the trial Court without considering the gravity of the case has rejected the application of the applicant giving incorrect findings. It is next submitted that since the applicant is in jail, therefore, the applicant is not delaying the trial. It is submitted that for proper adjudication of the case it is necessary to recall the P.W.-1 for his re-cross-examination. Lastly, it is submitted that it is a right of accused to get the witness recalled under Section 311 Cr.P.C. who has already been examined at any stage of trial. Therefore, trial Court has committed legal error in rejecting the application.

5. Per contra Sri Ashutosh Kumar Sand, learned Additional Government Advocate Ist has vehementally opposed the prayer of the applicant and contended that after the examination-in-chief of P.W.1 Chandan Paswan, his cross-examination on behalf of the accused applicant was completed on 3.02.2016. The application under Section 311 Cr.P.C. was moved by the applicant after an inordinate delay of about one year and three months on 2.05.2017 without giving any plausible explanation of delay. It is also submitted that accused applicant in his application dated 2.05.2017 has only mentioned that some important questions relating to case could not be put to the P.W.-1, therefore, for putting relevant questions recall of P.W.-1 is necessary, but did not mention that what are those important and relevant questions which were not put to the P.W.-1 and are now required to put to the P.W.-1. It is also submitted that accused has not come with clean hand and has moved an application dated 2.05.2017 after a long gape of one year and three months with an ulterior motive and want to delay the trial by hook and crook. Lastly, it is submitted by learned A.G.A. that there is no illegality or irregularity in the order dated 9.06.2017 passed by the trial Court. It is also pointed out by Mr. Sand, learned A.G.A. Ist that the applicant in para 13 of the application has mentioned that bare perusal of the order-sheet, it is clear that the trial is pending since 2014 and the applicant is not delaying the trial but the applicant has not filed the order-sheet of the trial Court, therefore the contention of the applicant in this regard is also against the evidence on record.

6. I have perused the record in the light of submissions advanced by the learned counsel for the parties. The very use of the words in Section 311 Cr.P.C., such as 'any court', 'at any stage' or 'of any inquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of this Court in any way. However, very width requires corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection consistently with the provisions of the Code. It is settled that the provision of Section 311 Cr.P.C. cannot be invoked to recall witness to resile from his previous statement. The object underlying in Section 311 of Cr.P.C. is that there may not be failure of justice on account of either party in bringing valuable evidence on record of living ambiguity in the statement of witnesses examined from either side. Determinative factor is whether it is essential for the just decision of the case or not. It is also settled that the power under Section 311 Cr.P.C. could not be invoked by the Court to fill up lacuna unless the Court is satisfied that in the interest of justice, it is necessary to invoke to said extraordinary power. Here in this case defence has already cross-examined P.W.-1 at length, to which defence sought to recall to put some question.

7. The Apex Court in the case of Rajaram Prasad Yadav Vs. State of Bihar and Another reported in 2013 (14) SCC 461 has considered the nature and scope of Section 311 Cr.P.C. with regard to recall and re-examination of witnesses, in detail and settled the principles, which have to be borne in mind while considering the application under Section 311 Cr.P.C. The relevant extract of the said judgement are reproduced hereinunder:

"17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?

17.2. The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.

17.4. The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.

17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

17.8. The object of Section 311 Cr.P.C. simultaneously imposes a duty on the court to determine the truth and to render a just decision.

17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.

17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

17.14. The power under Section 311 Cr.P.C. must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. "

8. Further the Apex Court in the case of A.G. Vs. Shiv Kumar Yadav and another reported in 2015 (91) ACC 640 following the principles laid down by the Apex court in the case of Ram Prasad Yadav (supra) has also considered the issue that the presumption that an accused in custody will not delay the trial is not well founded and could not be a valid consideration for retrial or recall of witnesses. The fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. It is not possible to lay down precise situations when such power can be exercised. The Legislature in its wisdom has left the power undefined. Thus, the scope of power under Section 311 Cr.P.C. has to be considered from case to case. In the said case, Apex Court has also observed that power of judicial superintendence under Article 227 of the Constitution of India and under Section 482 Cr.P.C. has to be exercised springily when there is a patent error or gross injustice.

9. After perusing the application dated 2.05.2017 under Section 311 Cr.P.C. of the applicant, it is apparent that the contents of application dated 2.05.2017 is vague, as the desired question on which P.W.-1 is required to be further cross-examined has not been mentioned. It appears that application dated 2.05.2017 has been moved by the applicant after a gap of one year and three months with an object that P.W.-1 may resile from his earlier statement, which is not permitted under law. The applicant has challenged the order dated 9.06.2017 before this Court after an inordinate delay of one year and five months. The trial Court in the order dated 9.06.2017 has also mentioned that no affidavit has been filed by the applicant in support of application dated 2.05.2017. All these facts also put question mark on the bona fide of the applicant. So far as the argument advanced by the learned counsel for the applicant is that to get a witness recalled under Section 311 Cr.P.C. is legal right of the accused and the same cannot be refused by the Court, is wholly misconceived under the facts of this case in view of scope and object of provisions of Section 311 Cr.P.C. All the cases cannot be equated on similar footing. This Court in the case of Shyam Kumar and another Vs. State of U.P. and another reported in 2003 (47) A.C.C. 290 has held that the accused cannot have the witness recalled for re-examination as a matter of right and extraordinary provision cannot be used as an afterthought to fill the gaps.

10. Considering the materials brought on record and keeping the Principles laid down by the Hon'ble Supreme Court as mentioned above, this Court is of the view that presumption, observations and findings recorded by the trial Court in rejecting the application under Section 311 Cr.P.C. of the applicant under the facts and circumstances of the case are fully sustainable. The trial Court has committed no illegality in rejecting the application of the applicant. There appears no abuse of process of the Court also. There is no evidence on record to satisfy this Court that trial would be seriously prejudiced if the said witness is not recalled for re-examination.

11. In view of the above, the application under Section 482 Cr.P.C. of the applicant having no merit deserves to be dismissed. In the result, the application is dismissed.

12. Office is directed to communicate this order to the concerned trial Court.

Order Date :- 4.12.2018

Shubhankar

(Sanjay Kumar Singh,J.)