Allahabad High Court
Yogendra vs State Of U.P. & Another on 15 March, 2021
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- U/S 482/378/407 No. - 1254 of 2021
Applicant :- Yogendra
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Ravi Kant Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Vikas Kunvar Srivastav,J.
The case is called out.
Learned counsel for the applicant, Sri Ravi Kant Pandey, Advocate and learned A.G.A. for the State are present in the Court.
The present application under Section 482 Cr.P.C. is directed against the impugned order dated 3.3.2021 passed by learned Sessions Judge, Gonda in Sessions Trial No.341/2016 (State Vs. Dali Pandey & Ors.) arising out of Case Crime No.273/2016, under Section 302 I.P.C. registered in Police Station- Kotwali Dehat, District- Gonda, by means of which the learned trial court has illegally rejected the application for summoning the in-charge of Dog Squad Team filed by the petitioner.
Apparently, it comes out from the pleadings made in the application under Section 482 Cr.P.C. and the relevant documents made annexure thereto that in the session trial after completion of evidence of prosecution, the trial court called on the accused including the present accused-applicant for their examination under Section 313 Cr.P.C. On perusal of the examination in the light of evidences led by the prosecution against the present accused applicant, when he was confronted with the evidences and asked about his defence, if any, he asserted to lead evidence in his defence and explained that his residential house is situated in a village 2 k.m. away from the spot of incident and he has been falsely implicated. The accused-applicant is aggrieved from the manner in which the trial court concluded the prosecution evidence and called the accused-applicant for their examination under Section 313 Cr.P.C. on the ground that the trial court has rejected his application vide impugned order dated 3.3.2021, which was moved by him for the purpose of summoning the in-charge of Dog Squad alongwith its report for examination, as prosecution witness by way of moving that application, the applicant tried to invoke the discretion of the court under section 311 Cr.P.C.
Learned counsel for the applicant pleaded and argued the point laying emphasis that the said in-charge of Dog Squad is a material witness of prosecution, whose examination is necessary for the just decision of the case. For the purpose of easy reference, the provision of Section 311 Cr.P.C., which is discretionary power vested in the court is being quoted hereunder:-
"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."
From the bare reading of provision as enacted under Section 311 Cr.P.C., it is clear that the trial court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or 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 state about any fact in issue.
On perusal of impugned order, it is obvious on the face of order that the same is passed assigning reason why the application is not maintainable at the instance of the accused against whom the prosecution has led entire evidences which is thorough material and necessary to be led. Learned court further endorsed in the order that the prosecution cannot be forced to lead any particular evidence. Further, the court below has stated in the order that all the accused, including the present accused applicant were confronted with the evidences led by the prosecution evidences against them on 18.2.2020 and now the trial is at the stage of defence evidence, whatever defence is available, the present accused-applicant, may submit before the trial court.
In accordance with law, a public prosecutor is not bound to examine all witnesses of a particular fact for the purpose of easy reference Section 226 of the Cr.P.C. is being quoted hereunder:-
"226. Opening case for prosecution. When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused."
In Rohtash Kumar Vs. State of Haryana reported in 2013 Cr.L.J. 3183 (SC) explaining the scope of provisions of Sections 231, 311 Cr.P.C. and Section 114 and 134 of the Evidence Act, the Supreme Court had ruled that prosecution need not examine its all witnesses. Discretion lies with the prosecution whether to tender or not witness to prove its case. However, adverse inference against the prosecution can be drawn only if withholding of witness was with oblique motive.
So far as the necessity of proposed witness/evidences, as alleged that the prosecution has withheld, if on conclusion of entire evidence, the trial court if feels necessity may call in its own discretion for the just and fair decision at any stage before the pronouncement of judgment under Section 311 Cr.P.C., as such, there is no illegality in the impugned order of the Court.
As such the application being devoid of merit, prayer made therein is refused and the application under Section 482 Cr.P.C. is dismissed.
Order Date :- 15.3.2021
Gaurav/-
