Anil Kumar And Another vs State Of U.P. And 2 Others
2021 Latest Caselaw 3413 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 89
 

 
Case :- APPLICATION U/S 482 No. - 1003 of 2021
 

 
Applicant :- Anil Kumar And Another
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Ajay Kumar Tiwari,Sangam Lal Kesharwani
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Sangam Lal Kwsharwani, learned counsel for applicants and learned A.G.A for State.

This application under section 482 Cr.P.C. has been filed challenging order dated 9.1.2020, passed by Additional Sessions Judge, Court No.3, Saharanpur in Sessions Trial No. 284 of 2013 (State VS. Ram Singh and Others) arising out of Case Crime NO. 169-A of 2012, under sections 147, 148, 307, 452, 325, 504, 506, 326 IPC, P.S. Janakpuri, District Saharanpur.

Record shows that P.W.2 Parvez was adduced by prosecution as P.W.2. He was examined by Court below and his examination concluded on 19.7.2019. After almost six months applicants who are accused in above mentioned criminal case filed an application dated 9.1.2020 in terms of section 311 Cr.P.C. seeking recall of aforesaid witness. This application has been rejected by Court below by means of order dated 9.1.2020, which has been impugned in present application.

Learned counsel for applicant contends that order impugned in present application i.e. 9.1.2020 is manifestly illegal. Applicant who are accused have filed above noted application for recall of P.W.2 for further examination as certain material aspects of the case which have material bearing could not be put to P.W.2. Therefore, in interest of justice, court below ought to have allowed the application. It is also submitted that justice should not only be done but also seen to be done.

Per contra learned A.G.A. has opposed this application. Learned A.G.A. has invited the attention of court to the application dated 9.1.2020, filed by applicants under section 319 Cr.P.C. which is on record as Annexure-8 to the affidavit. Learned A.G.A. contends that the above mentioned application is wholly vague as it does not contain a recital regarding material facts which could not be put to P.W.2 and further what questions are desired to be put to P.W.2. He, therefore contends that in the absence of material particulars in the application filed by accused applicants under section 311 Cr.P.C. Court below has rightly rejected the same as there was no material before the Court for exercising the jurisdiction under section 311 Cr.P.C.

He has further relied upon order dated 9.9.2019, whereby ,this Court while dealing with a similar issue in Application U/S 482 No. 26024 of 2018 (Firm/Ms. Nilophar Hides Sole Proprietor Mohd. Tahir Vs. State of U.P. and Another) has observed as follows:

"Mr. Shivendra Raj Singhal, learned counsel appearing for the applicant submits that firstly the application dated 20th June, 2018 filed by the opposite party no.2 does not state the reasons or the grounds on which the recall of P.W.-1 was prayed for. It is next contended that the issue qua the recall of the witness has been considered by the Apex Court in the case of Ratanlal vs. Prahlad Jat & Others reported in 2018 (1) SCCrJ 108 (SC) wherein the Apex Court has held that a witness cannot be recalled simply on the basis of an observation that the recall is necessary for ensuring free trial. Paragraph-20 of the said judgment which is relied upon by the learned counsel for the applicant is reproduced herein above:

"20. In State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016) 2 SCC 402, it was held thus:-

............ Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary ?for ensuring fair trial? is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined".

Apart from the above, reference is also made to the judgment of the Apex Court in the case of Raja Ram Prasad Yadav Vs. State of Bihar and another reported in 2013 (14) SCC 461, wherein the Apex Court in paragraphs 22 and 23, has laid following down guidelines, which must be adhered to before recalling a witness:

"22. Again in an unreported decision rendered by this Court dated 08.05.2013 in Natasha Singh vs. CBI (State) - Criminal Appeal No.709 of 2013, where one of us was a party, various other decisions of this Court were referred to and the position has been stated as under in paragraphs 14 and 15:

"14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party.

The power conferred 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 great caution and circumspection.

The very use of words such as ''any Court', ''at any stage', or ''or any enquiry', trial or other proceedings', ''any person' and ''any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, therefore, be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.

15. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376; Zahira Habubullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr. (2011) 8 SCC 136; and Sudevanand v. State through C.B.I. (2012) 3 SCC 387)."

23. 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:

a) 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?

b) 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.

c) 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.

d) 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.

e) 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.

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

g) 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.

h) 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.

i) 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.

j) Exigency of the situation, fair play and good sense should be the safe guard, 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.

k) 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.

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

m) 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.

n) 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."

When confronted with above, learned counsel for applicant could not improve upon the submissions urged by learned A.G.A.

Court has perused the application, filed by applicant under section 311 Cr.P.C. Same is wholly vague as it does not contain complete particulars regarding facts which could not be put to P.W.2 and further how they are relevant for arriving at a just conclusion.

In view of above, no illegality has been committed by Court below in rejecting the application dated 9.1.2020, filed by accused applicant under section 311 Cr.P.C. Impugned order dated 9.1.2020, passed by Additional Sessions Judge, Court No.3, Saharanpur in Sessions Trial No. 284 of 2013 (State VS. Ram Singh and Others) arising out of Case Crime NO. 169-A of 2012, under sections 147, 148, 307, 452, 325, 504, 506, 326 IPC, P.S. Janakpuri, District Saharanpur does not suffer from any material irregularity warranting intereferece of this Court under section 482 Cr.P.C.

Consequently application fails and is liable to be dismissed.

It is accordingly dismissed.

Order Date :- 15.3.2021

Arshad