Madan Lal vs State Of U.P. And 2 Others
2021 Latest Caselaw 2505 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 81
 

 
Case :- APPLICATION U/S 482 No. - 3809 of 2021
 

 
Applicant :- Madan Lal
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Vikash Chandra Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Heard Mr. Vikash Chandra Tiwari, learned counsel for the applicant and learned A.G.A. for the State of U.P.

2. This application under Section 482 Cr.P.C. has been filed for quashing the order dated 04.01.2021 passed by A.C.J.M., 5th Ghaziabad in Case No. 3406 of 2019 and order dated 18.01.2021 passed by Session Judge, Ghaziabad in Criminal Revision No. 16 of 2021 (Madan Lal vs. Sushama and others) and also direct the Court below to examine Hari Krishna son of Om Prakash as a witness in the present case.

3. Brief facts of the case are that the marriage of informant's daughter Sandhya was solemnized with Abhishek on 12.03.2018 according to Hindu Rituals and Rites. The informant spent sufficient money as per his capacity in the marriage of his daughter Sandhya. After passage of sometime, the in-laws of Sandhya harassed and tortured the daughter of the informant for non fulfilment of additional demand of dowry. Sandhya was also beaten for the aforesaid fact. On intervention of relatives, though husband and his family members promised not to torture Sandhya but on 01.06.2019 at about 11:00 p.m., the informant's daughter Sandhya informed her father that she was beaten by her in-laws again. On receiving such information, the informant reached at the house of in-laws of his daughter and found that his daughter was badly beaten by the accused persons. He also saw that accused persons were in a position to escape from that place alongwith their belongings, leaving his daughter after beating her. The informant had no option except to lodge FIR against the accused persons. The Investigating Officer after proper investigation, submitted the charge sheet against the accused persons.

One Hari Krishna gave an application alongwith an affidavit before the S.S.P. on 18.07.2019 and thereafter his statement was recorded under Section 161 Cr.P.C. by the Investigating Officer but he has not been shown as charge sheet witness, therefore, an application under Section 311 Cr.P.C. was moved by the applicant before the Additional Chief Judicial Magistrate, 5th Ghaziabad with a request to examine Hari Krishna as a witness.

The accused persons filed an objection to the same stating therein that in none of the statement of the witnesses, has any such fact, been brought on record that Hari Krishna is a necessary witness and his statement should be recorded as an eye witness and same will be relevant for proper investigation in the matter.

The aforesaid application was rejected by the impugned order dated 04.01.2021 against which, revision was filed and same has been rejected by order dated 18.01.2021.

4. It has been submitted by learned counsel for the applicant that the impugned order has been passed in a mechanical manner without considering the fact that it is essential to examine Hari Krishna in the present case as he was an eye witness.

By means of an order dated 04.01.2021, the Court below without considering the case of the applicant and the evidence available on record, has rejected the application of the applicant under Section 311 Cr.P.C. The Court below has rejected the application of the applicant on the ground that the applicant is trying to linger the matter and is delaying the same by moving such an application with a request to examine Hari Krishna, whose name has been taken by P.W.1. It is admitted position that the applicant is in jail, therefore, there is no occasion to delay the proceedings of the trial. There can be no dispute that the applicant has a right to summon any evidence/witness, which may be for proper appreciation of prosecution evidence and to substantiate his defence. The said aspect has totally been ignored by the trial Court while rejecting the application under section 311 Cr.P.C.. He therefore, submits that the impugned order dated 04.01.2021 is absolutely illegal, arbitrary, contrary to the evidence on record, hence the same is liable to be quashed.

5. Per contra, learned A.G.A. for the State has opposed the submission made by the learned counsel for the applicant by contending that impugned order passed by the Court below is legal and valid. The Court below has rightly rejected the application filed by the applicant under Section 311 Cr.P.C., wherein a request for examining Hari Krishna has been made, on the basis of the statement of P.W.1. The Court below has not committed any error in passing the impugned order, therefore, do not call for any interference by this Court. Hence, he submits that the present application is liable to be rejected.

6. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application.

7. Before ascertaining correctness of aforesaid submissions having been made by the learned counsel for the parties, vis-a-vis, impugned order passed by the learned court below, this Court deems it proper to take note of the provisions of law contained under Section 311 Cr.P.C.:

"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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case."

8. Careful perusal of aforesaid provision clearly suggests that court enjoys vast power to summon any person as a witness or recall and re-examine a witness provided same is essentially required for just decision of the case. Moreover, such exercise of power can be at any stage of inquiry, trial or proceedings under the Code, meaning thereby, applicant can file an application at any time before conclusion of trial. Very object of Section 311 Cr.P.C. is to bring on record evidence not only from the point of view of accused and prosecution but also from the point of view of the orderly society.

9. Otherwise also, it is well established principle of criminal jurisprudence that discovery, vindication and establishment of truth are main purposes of underlying object of courts of justice. It is also well settled that wider the power, greater the responsibility upon court, which exercises such power and exercise of such power cannot be untrammeled and arbitrary, rather same must be guided by object of arriving at a just decision of case. Close scrutiny of aforesaid provision of law further suggests that Section 311 has two parts; first part reserves a right to the parties to move an appropriate application for re-examination of a witness at any stage; but definitely the second part is mandatory that casts a duty upon court to re-examine or recall or summon a witness at any stage if his/her evidence appears to be essential for just decision of case because, definitely the underlying object of aforesaid provision of law is to ensure that there is no failure of justice on account of mistake on the part of either of parties in bringing valuable piece of evidence or leaving an ambiguity in the statements of witnesses examined from either side.

10. The Apex Court in the case of Raja Ram Prasad Yadav vs. State of Bihar and another, reported in (2013)14 SCC 461, has held that power under Section 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case. It may be relevant to take note of the following paras of the judgment:-

"14. A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a pre-fix to the various expressions mentioned above, it is ultimately stated 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. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution."

11. In this context, I also wish to make a reference to the judgment of the Apex Court in Mannan SK and others vs. State of West Bengal and another reported in AIR 2014 SC 2950, wherein the the Apex Court Court has held as under:-

"10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word 'shall'. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The court must form an opinion that for the just decision of the case recall or reexamination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine."

12. Aforesaid exposition of law clearly suggests that a fair trial is main object of criminal jurisprudence and it is duty of court to ensure such fairness is not hampered or threatened in any manner. It has been further held in the aforesaid judgments that fair trial entails interests of accused, victim and society and therefore, grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. The Apex Court has categorically held in the aforesaid judgment that adducing evidence in support of the defence is a valuable right and denial of such right would amount to denial of a fair trial.

13. Further, the Apex Court in Raja Ram Prasad Yadav (Supra), while culling out certain principles required to be borne in mind by the courts while considering applications under Section 311 has held that exercise of widest discretionary powers under Section 311 should ensure that judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts. Hon'ble Apex Court has further held that if evidence of any witness appears to be essential for 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 because very object of exercising power under Section 311 is to find out truth and render a just decision. Most importantly, in the judgment referred to herein above, the Apex Court has held that court should bear in mind that no party in 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.

14. Now coming to the merits of the impugned order passed by the Court below, this Court finds that the Court below, while rejecting the application filed by the applicant under Section 311 Cr.P.C. has specifically recorded a categorical finding of fact that Hari Krishna, whose name has been taken by P.W.1, was not a charge sheet witness. Though an application has been moved for examining Hari Krishna but in the said application, the address of Hari Krishna has not been mentioned, therefore, the Court was of the opinion that such application was moved just to linger the matter.

15. Keeping in mind the fact that Hari Krishna was a sole eye witness, the Court should have in exercise of powers under Section 311 Cr.P.C. summoned the witness in order to arrive at a just decision of the case but the Court has taken a contrary view on the ground that address of the said witness has not been mentioned and the application has been moved in order to delay the matter.

16. Considering the materials brought on record and keeping in mind the principles laid down by Hon'ble the Supreme Court in exercise of powers under Section 311 Cr.P.C., this Court is of the opinion that the observations and findings recorded by the Court below in rejecting the application of the applicant under Section 311 Cr.P.C. under the facts and circumstances of the case, are not sustainable in the eyes of law.

17. In view of the above, the Trial Court, is therefore, directed to pass an appropriate order in accordance with, in case a fresh application alongwith certified copy of this order, is moved by the applicant under Section 311 Cr.P.C. within one month from today.

18. The impugned order dated 04.01.2021 passed by A.C.J.M. 5th, Ghaziabad and order dated 18.01.2021 passed by Session Judge, Ghaziabad, are set-aside.

19. With the aforesaid directions, the present application under Section 482 Cr.P.C. is disposed of.

Order Date :- 18.2.2021

Monika