Allahabad High Court
Ram Kishor Singh And Another vs State Of U.P. Thru. Prin Secy. ... on 24 March, 2022
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?AFR
Court No. - 15
Case :- APPLICATION U/S 482 No. - 1273 of 2022
Applicant :- Ram Kishor Singh And Another
Opposite Party :- State Of U.P. Thru. Prin Secy. Deptt Home And Another
Counsel for Applicant :- Himanshu Kumar Srivastava
Counsel for Opposite Party :- GA.
Hon'ble Suresh Kumar Gupta,J.
This application under Section 482 Cr.P.C. has been filed with a prayer to pass an order or direction thereby quashing the impugned order dated 22.2.2022 S.T. No. 674 of 2001 (State Vs. Pramod Kumar Singh and others) initiated on the basis of case crime no. 64 of 2001 under Sections 498-A, 304-B I.P.C. and 3/4 of the D.P. Act Police Station- Saraini, District- Raibareli.
Learned counsel for the applicants submitted that marriage of the sister of the respondent no. 2 namely Smt. Suman Singh was solemnized on 19.4.2000 and due to an accident she was died while cooking on 25.5.2001 and due to which respondent no. 2 has lodged an F.I.R. as case crime no. 64 of 2001 under Sections 498-A, 304-B and 3/4 of the D.P. Act. Police Station- Saraini, District- Raibareli. After recording the statement of the accused under Section 313 Cr.P.C. trial was fixed for defence evidence. During the pendency of this trial an application under 311 Cr.P.C. for summoning and cross examination of P.W.-1 i.e. respondent no. 2 was moved on 7.2.2022. Learned counsel for the applicants submitted that specific question was framed under Section 311 Cr.P.C. but the trial court without giving opportunity for re-examination of the P.W.-1 wrongly rejected the application under Section 311 Cr.P.C.
The main contention of the learned counsel for the applicants is that in the interest of justice an application under Section 311 should be allowed.
Learned A.G.A. submitted that there is no illegality in the order passed by the trial court, as every aspects has been touched in the order of the trial court.
Being aggrieved with the order of the trial court this petition under Section 482 Cr.P.C. has been filed by the applicants.
The provisions of the Section 311 Cr.P.C. is quoted 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."
The relevant paragraph no. 23 of the Judgment of Hon'ble Apex Court in the case of Rajaram Prasad Yadav Vs. State of Bihar and others; AIR SC 3081.
23. From a conspectus consideration , while dealing with an application under Section 311 Code of Criminal Procedure read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Code of Criminal Procedure should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Code of Criminal Procedure should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
h) The object of Section 311 Code of Criminal Procedure simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
n) The power under Section 311 Code of Criminal Procedure must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.
I have heard learned counsel for the parties and perused the order dated 22.2.2022 of the learned trial court. From the perusal of the order of learned trial court it indicates that while passing order on application under Section 311 Cr.P.C. it is clearly mentioned that the chief examination of the P.W.-1 was conducted on 16.7.2003 and the accused persons were cross examined on 16.7.2003, 2.8.2003 and 13.8.2003. Thus, the evidence of P.W.-1 was concluded on 13.8.2003 apart from P.W.-1, the witness of fact and other witnesses had already been examined and other witnesses did not support the version of the prosecution and they had already been declared hostile. This application has been filed after lapse of 20 years. Calling of witnesses for cross examination after long gap depricated by the Hon'ble Apex Court in the case of Vinod Kumar Vs. State of Punjab (2015) 3 SCC 220.
In the application for re-examination of witness P.W.-1 certain questions framed by the applicant before the trial court and trial court clearly discussed each and every point raised by the applicant. Learned trial court opined that the question framed by the applicant in which the applicant want to cross examination of the P.W.-1, which has already been done. The P.W.-1 was already cross examined before the trial court before 20 years ago. The case is pending for the last 20 years and the occurrence is of the year, 2001. The order dated 22.2.2022 passed by the learned trial court is well reasoned and well discussed, thus learned trial court has rightly, rejected the application under Section 311 Cr.P.C. to recall the witness, P.W.-1 for further cross examination. Thus, there is no illegality, irregularity or perversity in the order passed by the learned trial court.
In view of above, the present application under Section 482 Cr.P.C. is devoid of merit and is liable to be dismissed.
The application under Section 482 Cr.P.C. is, accordingly, dismissed.
Order of the this Court be communicated to learned trial court for necessary compliance.
Order Date :- 24.3.2022
Anuj Singh
