Allahabad High Court
Raju @ Rajendra And Another vs State Of U.P. And Another on 17 February, 2021
Bench: Dinesh Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- APPLICATION U/S 482 No. - 4111 of 2021
Applicant :- Raju @ Rajendra And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Virendra Singh,Kapil Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Sri Rajpal Singh, Advocate has filed vakalatnama on behalf of the opposite party no. 2, which is taken on record.
Heard Sri K.K. Pandey, learned counsel for the applicants, sri Rajpal Singh, learned counsel for opposite party no.2, Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the orders dated 13.1.2021 and 19.1.2021 passed by Addl. Session Judge, Court NO.1, Fatehpur in S.T. No. 155 of 2000 (State vs. Pappu @ Mahesh and others) under sections 147, 148, 149, 302 IPC, P.S. Malwa, District Fatehpur and a further prayer is made for re-summoning the PW-1 Vinay Singh for further cross-examination which was rejected by the court below vide order dated 13.1.2021 and also a prayer is made to stay the proceedings in this case till the disposal of this application.
Submission made by the learned counsel for the applicants is that in the present case there were two deceased namely, Bhanu Pratap Singh and Bishesar Singh but in charge framed against the applicants, the name of the deceased, had been wrongly mentioned as deceased Daya Shankar in place of deceased Bishesar Singh. Therefore, the court below had directed by the impugned order dated 19.1.2021 to correct the said mistake because it was well within the power of the Court to rectify the charge at any stage before the judgment is pronounced. To that extent, learned counsel for the applicant has also no objection but it is being argued by him that if correction is made in the charge, an opportunity to cross-examine the witness of prosecution should be given to the learned counsel for the applicant, which has been denied, therefore, the impugned order suffers from infirmity and needs to be set aside.
The second order which has been challenged is dated 13.1.2021 whereby an application under section 311 Cr.P.C. moved from the side of the accused to summon PW-1 Vinay Singh, has been rejected. In this regard, it is argued by the learned counsel for the applicant that there were several questions left to be asked from this witness which have been specified in application moved under section 311 Cr.P.C, which is annexed at page-26 of the paper book. The said order also suffers from error as opportunity ought to have been given by the trial court.
Learned counsel for opposite party no. 2 has vehemently opposed the prayer made by the learned counsel for the applicants and it is argued by him that in the entire evidence which has come on record, no witness has stated that Daya Shankar had died as all of them had taken the nae of Bishesar Singh, who had been murdered in this occurrence and it was, therefore, only due to clerical error that in the charge the name of Daya Shankar has been mentioned as the person whose murder has been committed instead of Bishesar Singh. Therefore, there is no need to summon the witness all over again for being cross-examined.
Learned A.G.A. has also vehemently opposed the prayer for quashing of the impugned orders.
In view of the aforesaid, I do no find any infirmity in the said order because due to clerical error, name has been wrongly mentioned as Daya Shankar in place of Bishesar Singh whose murder had been committed and the same has been directed to be corrected by the court below.
As regard the application moved under section 311 Cr.P.C., the PW-1 Vinay Singh was cross-examined at length on as many as five dates and it is also mentioned in the impugned order that an application being application no.267-B was earlier also moved for recalling the said witness Vinay Singh which was rejected vide order dated 27.2.2020 but again the present application has been moved from the side of the accused specifying several questions to be asked.
There is no justification given of the delay in moving the said application. The Supreme Court in the case of Ratan Lal vs. Prahlad Jat and others, (2017) 9 SCC 340 has laid-down that the power under section 311 Cr.P.C. must be exercised with caution and circumspection and only for strong and valid reasons. Recall of a witness already examined is not a matter of course and discretion given to court in this regard has to be exercised judicially to prevent failure of justice. Reasons for exercising the said power should be spelt out in the order. Delay in filing application for recalling a witness is one of the important factors which has to be explained in the application.
In the light of the above law, it is apparent that in the present case the applicants have not shown any reason for delay in moving the said application and already it has come on record that extensive cross-examination has already been made from the said witness, hence I do not see any infirmity in the impugned order.
In view of the above, this application deserves to be dismissed and is accordingly dismissed.
Order Date :- 17.2.2021
AU
