Lakha [email protected] Veer Bahdur [email protected] ... vs State Of U.P. And Another
2022 Latest Caselaw 20083 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 84
 

 
Case :- APPLICATION U/S 482 No. - 26429 of 2022
 

 
Applicant :- Lakha [email protected] Veer Bahdur [email protected] Lakha Maurya
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Pradeep Kumar,Pawan Kumar Patel
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Applicant, an accused in Special Session Trial No. 55 of 2017 (State vs. Lakha Verma alias Veer Bahadur Verma), arising out of Case Crime No. 390 of 2015, under Sections 362, 366, 376 IPC and 3/4 POCSO Act, Police Station Bansdih Road, District Ballia, has moved an application under Section 311 Cr.P.C. to recall all prosecution witnesses, i.e., PWs ? 1 to 6 without any reason whatsoever, at the stage when in trial date is fixed for recording of statement of accused under Section 313 Cr.P.C. Said application was rejected by means of impugned order dated 15.07.2022 on the ground that it was not necessary for just decision of the case.

2. Learned counsel for applicant submits that during pendency of trial the victim has started living happily with applicant and for this purpose he wants to recall the victim for further cross-examination.

3. Learned AGA appearing for State has opposed the above submission and submits that though power under Section 311 Cr.P.C. is very wide, however, it has to be exercised with caution and only for just decision of case.

4. In the present case applicant has not made out any case in the application to recall witnesses. Oral argument that he wants to bring on record subsequent event is nothing but to make out a case in his favour.

5. Law with regard to power under Section 311 Cr.P.C. has recently been reiterated by Supreme Court in V.N. Patil vs. K. Niranjan Kumar and others, (2021) 3 SCC 661 and Varsha Garg vs. State of Madhya Pradesh and others, 2022 SCC OnLine SC 986 and it would be appropriate to reproduce para 14 of the judgment passed in V.N. Patil (supra) as under:

?14. The object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is ?at any stage of any inquiry or trial or other proceeding under this Code?. It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said ?wider the power, greater is the necessity of caution while exercise of judicious discretion.?

6. As referred above, in the present case examination of witnesses has already been concluded and they were also cross-examined at length. Trial is at the fag end, i.e., at the stage of recording of statement of accused under Section 313 Cr.P.C. Therefore, at this stage to recall all prosecution witnesses is nothing but for purpose to fill the lacuna in cross-examination or to get something favourable to accused, which is not within the scope of Section 311 Cr.P.C.

7. Accordingly, I do not find any illegality or irregularity in the impugned order. Application stands dismissed.

Order Date :- 6.12.2022

AK-(Sl. No. 12 out of 329 fresh cases)