Sanjay Kesarwani vs State Of U.P. And Another
2022 Latest Caselaw 2468 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 70
 

 
Case :- APPLICATION U/S 482 No. - 10334 of 2022
 

 
Applicant :- Sanjay Kesarwani
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Dinesh Pathak
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

1. Heard learned counsel for the applicant and learned A.G.A for the State.

2. The present application has been filed for quashing the impugned order dated 04.04.2022, passed by the Additional District & Sessions Judge, Court No.1, Kaushambi in Session Trial No. 460 of 2009 (State vs. Sanjay Kesharwani), Case Crime No. 62 of 1995, under Sections 307, 504 and 506 IPC, P.S. Kokhraj, District Kaushambi, whereby an application moved by the applicant under Section 311 Cr.P.C. for summoning of PW-3 Pradeep Kumar Rai for further cross-examination has been rejected.

3. It has been argued by the learned counsel for the applicant that applicant is facing trial in above stated session trial case and one of the co-accused, namely, Brijesh Rastogi has claimed juvenility and he has filed an application under Section 482 Cr.P.C. No. 44393 of 2013, wherein by order dated 05.12.2013 it was directed by this Court that judgment shall not be pronounced in respect of co-accused Brijesh Rastogi by the trial Court till next date of listing. Thereafter the trial Court has passed the order dated 06.12.2013, which has been annexed as Annexure-3 to this application. Learned counsel submitted that on 15.01.2021 file of applicant/accused was separated by the trial Court and thereafter by order dated 15.03.2022, co-accused Brijesh Rastogi was declared juvenile and his file was referred to Juvenile Justice Board. Earlier, the applicant has filed an application under Section 311 Cr.P.C. for summoning of PW-3 Pradeep Kumar Rai for further cross-examination but that application was rejected vide order dated 01.03.2021. Learned counsel submitted that in charge-sheet PW-3 Pradeep Kumar Rai has been shown as son of Parmanand Rai/opposite party no.2, whereas in his statement, PW-3 Pradeep Kumar Rai has stated the name of his father as Sashikant Rai and that in the injury report of Pradeep Kumar Rai, the name of his father has been mentioned as Parmanand Rai (complainant), and as there was variance in the name of father of PW-3 Pradeep Kumar Rai and thus, applicant has moved another application under Section 311 Cr.P.C. for further cross-examination PW-3 Pradeep Kumar Rai for clarification of that ambiguity but that application has also rejected by the Court below vide order dated 04.04.2022, which is being impugned in the present application under Section 482 Cr.P.C. It has also been submitted that by the same order dated 04.04.2022 learned Court below has also directed that additional charge of Section 34 IPC be also framed against the applicant. Learned counsel submitted that the impugned order is against facts and law and thus, liable to be set aside.

4. Learned A.G.A. has opposed the application and argued that there is no illegality or perversity in the impugned order. The applicant has sought summoning of PW-3 Pradeep Kumar Rai, on the ground that there is ambiguity regarding name of father of PW-3 Pradeep Kumar Rai which is inconsequential and that applicant wants to take benefit of technicalities and clerical errors. It was stated that the case is at the stage of final argument and said session trial case is pending since the year 2009. It was also stated that even before the impugned order, earlier also the application of applicant under Section 311 Cr.P.C., has already been rejected by the trial Court. Learned A.G.A. further submitted that in the application moved by applicant under Section 311 Cr.P.C. there was no such allegation that summoning of PW-3 Pradeep Kumar Rai is required on the ground of framing of addition of charge and in fact the said charge has been added later on.

5. I have considered the rival submissions and perused the record.

6. It is well settled that court is empowered to summon, recall or re-examine any witness at any stage of trial who has already been examined if his evidence appears to the Court to be essential to the just decision of the case. In case of Natasha Singh vs. CBI 2013 SCC, the Court has held as under:

"8. Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at ?any stage? of ?any enquiry?, or ?trial?, or ?any other proceedings? under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

15, The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party.

The power conferred under Section 311 Cr.P.C. 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 great caution and circumspection.

The very use of words such as ?any Court?, ?at any stage?, or ?or any enquiry, trial or other proceedings?, ?any person? and ?any such person? clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."

7. In the instant case, perusal of record shows that PW-3 Pradeep Kumar Rai was examined before the trial Court in the year 2010. Earlier one application under Section 311 Cr.P.C. for recalling PW-3 Pradeep Kumar Rai, was rejected by the trial Court vide order dated 01.03.2022 by imposing costs of Rs. 1000/-. The case is stated at the stage of final argument. Despite rejection of first application of applicant under Section 311 Cr.P.C., he has again moved the second application under Section 311 Cr.P.C. for recalling same witness PW-3 Pradeep Kumar Rai, which has been rejected by the trial Court by impugned order dated 04.04.2022. In view of the facts of the matter, the grounds taken in application under Section 311 Cr.P.C., are wholly inconsequential and that the trial Court has observed that as no question was to be asked by the applicant on substantial particulars of the case and thus, recalling of said witness is not required. The court below has also observed that the application was moved by the applicant with intention to delay the trial.

8. Considering the submissions of learned counsel for the parties and facts of the matter, there does not appear any such illegality or perversity in the impugned order so as to require any interference by this Court by invoking extraordinary jurisdiction under Section 482 Cr.P.C. It is trite that inherent powers of the High Court under Section 482 Cr.P.C. have to be exercised sparingly with circumspection and in rare case to correct patent illegality or to prevent miscarriage of justice. In the instant matter, no such case is made out. The instant application under Section 482 Cr.P.C lacks substance and thus, liable to be dismissed.

9. In view of aforesaid, application under Section 482 Cr.P.C. is hereby dismissed.

Order Date :- 11.5.2022

A. Tripathi