Allahabad High Court
Aman Mani Tripathi vs State Of U.P. & Another on 25 March, 2021
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- U/S 482/378/407 No. - 300 of 2021
Applicant :- Aman Mani Tripathi
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Smt. Nalini Prakash Jain
Counsel for Opposite Party :- G.A.,Rajiv Raman Srivastava,Romil Sagar
Hon'ble Vikas Kunvar Srivastav,J.
The case is called out.
Learned counsel for the applicant, Smt. Nalini Prakash Jain, 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 08.01.2021 passed by the learned Additional Session Judge 19, Lucknow/Special Judge M.P.M.L.A. Court, Lucknow by which the application of the petitioner has been rejected on a totally wrong ascertainment of facts. Further the petitioner prays that the proceedings of the session trial no.1119 of 2015, case crime no.51 of 2014, under Section 364, 386, 323, 504, 506 of I.P.C., Police Station Gautampalli, District Lucknow pending in the Court of Additional Session Judge, 19, Lucknow/Special Judge, M.P.M.L.A. Court, Lucknow may kindly be stayed during pendency of the present petition. Lastly, the petitioner prays that this Hon'ble Court may graciously be pleased to allow the application of the petitioner so preferred under Section 311 Cr.P.C. for calling the P.W.3, P.W.4 and P.W.5 for re-examination.
The grievance made therein that the application under Section 311 Cr.P.C. is rejected by the trial court illegally. The argument made on behalf of learned counsel for the applicant is not satisfactory to invoke the extra-ordinary power of the Court under Section 482 Cr.P.C. to interfere with the order. 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 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.
Accordingly, the application under Section 482 Cr.P.C. is finally disposed of in view of the above observations.
The Deputy Registrar (Criminal) is directed to inform the learned court below i.e. Additional Session Judge 19, Lucknow/Special Judge M.P.M.L.A. Court, Lucknow immediately through e-mail of his judgeship and the court today itself.
Order Date :- 25.3.2021
Saurabh
