Gulam Rasool vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 20822 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- CRIMINAL REVISION No. - 1286 of 2022
 

 
Revisionist :- Gulam Rasool
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 5 Others
 
Counsel for Revisionist :- Santosh Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

Heard Sri Santosh Kumar Srivastava, learned counsel for the revisionist, Sri S.N. Goswami, learned A.G.A. for the State and perused the entire record.

The instant criminal revision under Section 397/401 Cr.P.C. has been filed by the revisionist, Gulam Rasool against the impugned order dated 02.11.2022, passed by Additional Sessions Judge, Court No.2, Ambedkar Nagar, in Sessions Trial No.247 of 2013, State vs. Sabir Ali and others, arising out of Case Crime No.210 of 2013, under Sections 147, 148, 149, 302, 307, 506 I.P.C., Police Station Kotwali Akbarpur, District Ambedkar Nagar, whereby the application, under Section 311 Cr.P.C. moved by the present revisionst for summoning the witnesses, PW-1 to PW-5 for their cross-examination, came to be rejected.

In view of the order which is proposed to be passed today, notice to opposite party Nos.2 to 6 is hereby dispensed with.

Learned counsel for the revisionist has submitted that an application 28B, dated 31.10.2022, moved by the revisionist under Section 311 Cr.P.C. seeking recall of PW-1 to PW-5, came to be wrongly rejected by learned trial Court vide order dated 02.11.2022 on the ground that cross-examination of PW-1 to PW-5 has already been done in the present case. He has also submitted that in the right of fair trial available to an accused, right of effective cross-examination is implicit which came to be denied by the learned trial court by means of the impugned order dated 02.11.2022.

His next submission is that the rejection of application filed by the revisionist under Section 311 Cr.P.C. would, in aforesaid factual background, amount to failure of justice to the revisionist and it would also be an instance of abuse of process of this Court.

Learned counsel for the revisionist has also submitted that the provisions contained in 311 Cr.P.C. are such in nature to provide fullest opportunity to an accused as well as the prosecution to summon, examine, recall and re-examine any witness. He, therefore, argues that the impugned order dated 02.11.2022, in the facts of this case, is palpably illegal and deserves to be set aside.

He has also submitted and undertaken that in case any last opportunity is afforded to the present revisionist, he shall abide by the direction of learned trial Court and shall conclude the cross-examination of PW-1 to PW-5 on the date fixed by learned trial Court itself.

To buttress his aforesaid submissions, learned counsel for the revisionist has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in Varsha Garg vs. State of Madhya Pradesh and others reported in 2022 SCC OnLine SC 986.

Per contra, learned A.G.A. has opposed the prayer by submitting that the application under Section 311 Cr.P.C. seeking further cross-examination of PW-1 to PW-5 rightly came to be dismissed by the learned trial court, which was nothing but an afterthought design to delay the proceedings of Sessions Trial No.247 of 2013, State vs. Sabir Ali and others.

His further submission is that in fact, examination of such witness, at this stage, would be detrimental to the prosecution and it would make the process of trial an unending process which would also be against the legislative intent behind the incorporation of Section 311 Cr.P.C.

This Court is conscious of the fact that the provisions contained in Section 311 Cr.P.C. confer the power of wide amplitude on the court concerned to summon, examine, recall and re-examine such person.

The provisions contained in Section 311 Cr.P.C., being germane to the present controversy, are extracted herein below:-

"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."

(emphasis supplied)

Having heard learned counsel for the revisionist, learned A.G.A. for the State and upon perusal of the record, this Court finds that it is not reflected from the impugned order dated 02.11.2022 that learned trial court tried to ascertain as to whether any opportunity of cross-examination of PW-1 to PW-5 on behalf of the present revisionist was afforded to him or not. Despite this fact, the impugned order dated 02.11.2022 came to be passed closing the opportunity of cross-examination of witnesses, PW-1 to PW-5. The fact that the revisionist has been unable to cross examination witness, PW-1 to PW-5 would definitely prejudice the right of accused/revisionist in defending him properly and effectively.

This Court is also mindful of the fact that the Hon'ble Supreme Court in Varsha Garg's case (supra) in paras 31 to 37 has held as under:-

"31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court "may":

(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and (ii) Recall and re-examine any person who has already been examined.

32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court "shall" summon and examine or recall and re-examine any such person "if his evidence appears to the Court to be essential to the just decision of the case". Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.

33. The first part of the statutory provision which uses the expression "may" postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression "shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case". Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.

34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed:

"16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision ? either discretionary or mandatory ? depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice."

35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the "evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means." In that context the Court observed:

"18 ?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."

36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P.19, State of W.B. v. Tulsidas Mundhra20, Jamatraj Kewalji Govani v. State of Maharashtra21, Masalti v. State of U.P.22, Rajeswar Prosad Misra v. State of W.B.23 and R.B. Mithani v. State of Maharashtra24, the Court held:

"27. The principle of law that emerges from the views expressed by this Court in the above decisions is 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."

37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest."

Adverting to the facts of this case, this Court is of considered view that in the peculiar facts of this case, the impugned order dated 02.11.2022, which has been passed without ascertain as to whether any opportunity of cross-examination of PW-1 to PW-5 on behalf of the present revisionist was afforded to him or not and also without considering the law laid down by the Hon'ble Supreme Court in Varsha Garg's case (supra), is unsustainable.

The upshot of aforesaid discussion is that the instant criminal revision deserves to be allowed which is, thus, allowed. Consequently, the impugned order dated 02.11.2022 is hereby set aside.

It is directed to the learned trial court to dispose of the application 28B, dated 31.10.2022, under Section 311 Cr.P.C., moved by the revisionist, afresh by means of speaking and reasoned order with utmost expedition, in view of the observation made hereinabove.

It is needless to mention that in case learned trial Court after hearing a fresh, comes to the conclusion that in the interest of justice, it is necessary to recall the aforesaid witnesses, the same may be done on the date to be fixed by the learned trial Court without giving any further liberty to the revisionist to get the cross-examination deferred.

Learned trial Court shall also be at liberty to impose a reasonable cost which be given to the witnesses who is so recalled for cross-examination.

Office is directed to inform the court concerned about this order through fax/ e-mail forthwith.

Order Date :- 13.12.2022

A.Dewal