Nasim Khan vs State Of U.P. And Anr
2018 Latest Caselaw 4035 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 49
 

 
Case :- APPLICATION U/S 482 No. - 36354 of 2018
 

 
Applicant :- Nasim Khan
 
Opposite Party :- State Of U.P. And Anr
 
Counsel for Applicant :- Ajay Sengar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ved Prakash Vaish,J.

1. Heard Sri Ajay Sengar, learned counsel for the applicant and Sri D.K. Srivastava, learned A.G.A. for the State.

2. This is an application under Section 482 of Code of Criminal Procedure (in short 'Cr.P.C.') challenging the order 10.9.2018 passed by learned Additional Sessions Judge, Jalaun at Orai in Sessions Trial No.21 of 2015 (State of U.P. Vs. Aziz & others) arising out of Case Crime No.1138 of 2014, under Sections 498A, 304B I.P.C. and Section ¾ of the Dowry Prohibition Act, 1961, P.S. Ait, District Jalaun.

3. Learned counsel for the applicant submits that brother of the applicant was married with daughter of respondent no.2 on 4.12.2010, the daughter of the respondent no.2 committed suicide on 11.10.2014. The case was registered against the applicant and co-accused persons. On completion of the investigation, charge-sheet for the offence under Sections 498A, 304B I.P.C. and Section ¾ D.P. Act was filed; the charges were framed and the prosecution witnesses were examined; statement of co-accused persons under 313 of Cr.P.C. was recorded.

4. Learned counsel for the applicant also submits that the applicant moved and application under Section 311 of Cr.P.C. dated 23.7.2018 with the prayer to summon the Dr. Pawan, who initially medically examined the deceased, the said application was dismissed by learned trial court vide order dated 25.7.2018 on the ground that the name of the doctor was not disclosed. The applicant, again, moved an application under Section 311 Cr.P.C. dated 25.8.2018 praying that Dr. Pawan, who initially medically examined the deceased be summoned, the said application has been dismissed vide order dated 10.9.2018.

5. Learned counsel for the applicant further submits that the deceased was initially medically examined by Dr. Pawan at District Hospital, Jalaun at Orai on 11.10.2014, the same is mentioned in the FIR and Dr. Pawan has not been cited as a witness. He submits that applicant intends to examine Dr. Pawan as a defence witness in order to prove his defence.

6. On the other hand, learned A.G.A. for the State has opposed the application by submitting that the applicant did not examine Dr. Pawan as a defence witness when opportunity was given to him after recording statement under Section 313 Cr.P.C. Learned A.G.A. has submitted tha the present application has been filed to delay the trial.

7. I have carefully considered the submissions made by learned counsel for the applicant and learned A.G.A.

8. Before examining the merits of the case, it is necessary to consider the provision of Section 311 of Cr.P.C., which 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 it to be essential to the just decision of the case.

9. A bare reading of Section 311 Cr.P.C. clearly goes to show that the widest powers have been invested with the courts and the courts can summon any witness, or recall or re-examine any witness already examined. The expression used in Section 311 Cr.P.C. "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not examined as a witness", and "person already examined". By using the expression "any" as a prefix to the expression mentioned above, it is clear that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the court to be essential for the just decision of the case.

10. Thus, it is clear that if the court is satisfied that it is essential for the just decision of the case, any witness can be summoned or recall or re-examined. It is imperative that before invoking Section 311 of Cr.P.C., the court should bear in mind the object and purport of the said provision, namely, for achieving a just decision of the case. The power under Section 311 Cr.P.C. is available at any stage in any inquiry or trial or other proceeding for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as a witness or to recall or re-examine any person already examined.

11. The Hon'ble Supreme Court considered the scope of Section 311 of Cr.P.C. in the case of "Jamatraj Kewalji Govani Vs. State of Maharshtra", AIR 1968 SC 178 in paragraph 14 of the said judgment, which was held as under;

"14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction."

12. In another case "Mohanlal Shamji Soni Vs. Union of India and another", 1991 Suppl. (1) SCC 271, the Apex Court highlighted the importance of the power to be exercised under Section 311 of Cr.P.C. In paragraph 10 of the said judgment, it was observed as under;

"10....In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re- examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated."

13. The Apex Court in the judgment of "Raj Deo Sharma (II) vs. State of Bihar", 1999 (7) SCC 604, it was held as under;

"9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five-Judge Bench in A.R. Antulay case nor in Kartar Singh case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and re-examine any such person."

14. In "Iddar and others Vs. Aabida and another", 2007 (3) RCR (Criminal) 909, Hon'ble Supreme Court considered the object only Section 311 Cr.P.C. in the case and it was held as under;

"11. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is ''at any stage of inquiry or trial or other proceeding under this Code'. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."

15. In another case titled as "P. Sanjeeva Rao Vs. State of A.P.", 2012 (3) RCR (Criminal ) 653, the scope of Section 311 of Cr.P.C. was highlighted by Hon'ble the Supreme Court and it was held as under;

"13. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC 430. The following passage is in this regard apposite:

"In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible."

16. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself."

16. In another case,"U.T. Dadra and Nagar Haveli and another Vs. Fatehsinh Mohansinh", 2006 (7) SCC 529, it was observed as under;

"15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in the 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. It is settled principle of law that it is duty of the court to ensure that fair trial is not hampered or threatened in any manner. Fair trial means the interest of the accused, the victim and of the society to be considered, and therefore, grant of fair and proper opportunities to the person concerned has to be given, under no circumstances can a person's right to fair trial be jeopardized.

18. The present case, the applicant alongwith co-accused persons have been chargsheeted for the offence under Sections 498A, 304B I.P.C. and Section ¾ of the Dowry Prohibition Act, 1961. It is not disputed that initially the deceased was medically examined at District Hospital, Jalaun at Orai. The applicant moved an application under Section 311 Cr.P.C. to summon Dr. Pawan from District Hospital, Jalaun at Orai with a view to bring on record the details of injuries recorded at the time of medical examination of the deceased. The trial court has dismissed the application under Section 311 Cr.P.C. on the ground that the applicant has not able to explain as to how the presence of Dr. Pawan is necessary because the post-mortem report is already on record.

19. In view of the aforesaid discussion and the law laid down in the aforesaid judgments, in my view, the summoning of Dr. Pawan, who initially medically examined the deceased cannot be said to be immaterial. Accordingly, the present application deserves to be allowed and the same is hereby allowed and the impugned order dated 10.9.2018 passed by learned Additional Sessions Judge/Special Judge, SC/ST Act, Jalaun at Orai is set aside. The trial court is directed to summon Dr. Pawan as a defence witness as submitted by learned counsel for the applicant, at the expenses of the applicant and record his statement as earliest as possible, preferably within a period of one month from the next date of hearing fixed before the trial court, without any unnecessary adjournment.

20. Accordingly, the present application under Section 482 of Cr.P.C. stands disposed of.

(Ved Prakash Vaish, J.)

Order Date :- 30.11.2018

Vivek Kr.