Asif Khan And Another vs State Of U.P. And Anotherstate Of ...
2021 Latest Caselaw 3440 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- APPLICATION U/S 482 No. - 6168 of 2021
 

 
Applicant :- Asif Khan And Another
 
Opposite Party :- State Of U.P. And Anotherstate Of U.P. And Another
 
Counsel for Applicant :- Araf Khan,Lihazur Rahman Khan
 
Counsel for Opposite Party :- G.A.,Krishna Dev Mishra
 

 
Hon'ble Dinesh Kumar Singh-I,J.

Sri Krishna Dev Mishra, Advocate has filed his Vakalatnama on behalf of Opposite Party No. 2 and the same is taken on record.

Heard Sri Araf Khan, learned counsel for the applicants, Sri Krishna Dev Mishra, learned counsel for the O.P. No. 2 and Sri G.P. Singh, learned A.G.A. for the State.

This Application under Section 482 Cr.P.C. has been filed with a prayer to set-aside as well as stay the effect and operation of the order dated 29.01.2021 passed by A.D.J. Court (Court No. 15), Aligarh and the entire criminal proceedings in S.T. No. 44 of 2016 arising out of Case Crime No. 362 of 2015 under Sections 147, 148, 149, 302 and 120-B I.P.C., P.S. Delhi Gate, District, Aligarh directing the court below to recall and re-examine the O.P. No. 2 on the points sought to be raised by way of the application dated 08.01.2021.

Submission made by learned counsel for the applicants is that trial court has erroneously passed order dated 29.01.2021 whereby it has turned down the prayer of the accused applicants of summoning P.W. 1, Raja and P.W.2, Rafiq in order to put several questions to them which have been mentioned in their Application, 43-Kha specifically, therefore, it is prayed that impugned should be set-aside and the trial court be directed to summon them and allow the counsel for the accused to ask the said witnesses the said questions which have been mentioned in the said Application 43-kha. In this regard, he has relied upon the law laid down by Hon'ble Apex Court in Mohanlal Shamji Soni Vs. Union of India and another in which following has been laid down:

It is cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of a court not only to do justice but also to ensure that justice is being done. 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 or 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. The very usage of the words such as ?any court?, ?at any stage?, or ?of any enquiry, 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 the court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.

Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to ajust decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by 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 rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.

This Court finds that law is very clear that the Court has been given power to summon any witness in Court at any stage in any enquiry, trial or other proceedings but simultaneously burden has been cast upon the Court to exercise its power with extreme circumspection consistent with the provisions of this Code and the second part of the Section does not allow for any discretion rather it binds and compels the Court to take any of the above-mentioned two steps, if fresh evidence to be obtained, is essential for just decision of the case. But in this very ruling, it has been mentioned that the discretion is not to be exercised in order to fill up the lacuna left by the prosecution or by the defence, nor should be exercised to the disadvantage of the accused or to cause serious prejudice to the defence of accused, nor to give any unfair advantage to rival side. The additional evidence should not be received as a disguise for retrial or to change the nature of the case.

In the present case, it is apparent that the trial court while exercising its powers/discretion under provisions of 311 Cr.P.C. has chosen not to summon the aforesaid witnesses because it has been noted in the impugned order that a detailed cross-examination has been done of both the witnesses along the lines of the questions which are now being proposed to be asked from two witnesses and almost each and every question which has been proposed, the same has been dealt with in detail citing evidence that the questions were in-fact asked earlier during the cross-examination by the learned counsel for the defence and it is also recorded in the said order that both these witnesses have been cross-examined on 12 various dates between 13.01.2017 to 5.09.2019 and, therefore, it was observed that present Application does not require to be allowed in the interest of justice. It is settled law that this power is vested in trial court to assess as to whether summoning of the witnesses, who are being prayed to be summoned, should actually be called or not in order to do justice in the case, this discretion appears to have been justly exercised by the trial court while refusing to give opportunity to defence to again cross-examine the said two-witnesses.

Learned A.G.A. has vehemently opposed the permission to be given to re-summon these two witnesses because it has been pointed out by him that only statement of PW. 1 has been annexed and not that of P.W.2, therefore any questions which are mentioned to be asked from P.W.2, cannot be appreciated by this Court as to whether they have already been asked from the side of defence or not. But as regards questions which are proposed to be asked from P.W. 1, Raja, he has drawn attention of the Court towards the statement of this witness, copy of which is annexed at page no. 24 of the paper book in which he has stated that on the date of occurrence when he reached house in order to take the keys between 11:00 p.m. to 11:30 p.m., few people met him on the way and Asif Thakur (Applicant no. 1) and Ahsan had taken away his father, Naushe @ Junaid (deceased) and his uncle Chanda (deceased). This witness and his uncle, Rafiq were going to the place where his father was going on motorcycle in order to bring keys and when they reached near the house of Shamshad, there was enough light due to the programme going on there. Just ahead the house of Shamshad in front of house of Pyare, this witness's father, Naushe (deceased) and Chanda (deceased) were opened fire by Asif Thakur (applicant No. 1), Kafeel, Vakeel and Bhura (Applicant no. 2) by their pistols indiscriminately by which his father and uncle both received injuries and fell down. He has further drawn attention of the Court towards page no. 30 of the paper book wherein in a reply to a question as to whether at the time of occurrence, there was light/electricity/generator, this witness has stated that he cannot tell the same but it is wrong to say that on the place of occurrence, there was no light/electricity or generator. Then he has drawn attention of the Court towards page no. 33 of the statement of this witness in which it has been stated by this witness that there was just two feet distance between house of Shamshad and Pyare which are adjacent to each other and having drawn attention towards these pieces of evidence, it is argued by him that these pieces of evidence which have been pointed out, would amount to give clear reply with respect to proposed question no.1 as to from how much distance, this witness had seen the occurrence. Regarding rest of the questions, it was argued by him that they are not very material and would not have any material effect on the decision of this case, therefore, it is argued that the present Application deserves to be rejected.

Learned counsel for the O.P. No. 2 has also vehemently opposed the prayer of learned counsel for the applicants and has limited his arguments to the extent that this is double murder case in which various obstructions have been created from the side of accused so that trial court may not proceed with the trial expeditiously.

I have gone through the entire impugned order as well as the law which has been cited above and I find that in the law cited by learned counsel for the applicants, it is very clearly mentioned that this provision cannot be invoked in order to fill up the lacuna left by prosecution or by defence nor can the said invocation be made to the disadvantage of either side. In my opinion, the questions which are proposed to be asked, should have been asked long back when the witnesses were being cross-examined and as long as 50 pages of evidence has been recorded by the trial court, therefore, it does not sound logical that these questions were omitted from being asked despite such a lengthy cross-examination with regard to P.W.1. As regards, P.W. 2, it is apparent that no statement of this witness has been annexed, therefore, this Court is unable to verify as to whether the questions which were proposed to be asked from this witness, had been asked by defence counsel or not at the time of cross-examination.

In view of the above, this Court does not find any force in the arguments made by learned counsel for the applicants, therefore, this Application deserves to be dismissed and is, accordingly dismissed.

Order Date :- 15.3.2021

A. Mandhani