Kasim And Another vs State Of U.P. And 2 Others
2022 Latest Caselaw 16232 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 84
 

 
Case :- APPLICATION U/S 482 No. - 21354 of 2022
 

 
Applicant :- Kasim And Another
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Mayank Yadav,Vivek Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

Sri Vivek Kumar Singh, learned counsel for applicants submits that application filed under Section 311 Cr.P.C. on behalf of accused persons was wrongly rejected by impugned order dated 14.06.2022 without considering the scope of Section 311 Cr.P.C. to recall PW-1 and PW-2 was essential to the just decision of case.

Per contra, Sri Chandan Agrawal, learned A.G.A.-I has supported the impugned order dated 14.06.2022.

Heard learned counsel for parties and perused the record.

In the impugned order, learned trial Court has noted that PW-1 was cross examined in detail and his cross examination runs into 30 pages as well as PW-2 was also cross examined in detail and his cross examination runs into 17 pages. The examination of PW-1 and PW-2 were concluded on 25.03.2019 and 24.09.2019 respectively and application was filed on 16.12.2021. In between, evidence of all other witnesses were concluded.

The Supreme Court in a recent judgment in the case of Varsha Garg vs. State of Madhya Pradesh and others, 2022 SCC OnLine SC 986 has reiterated the scope of Section 311 and relevant part of judgment is quoted hereinbelow :-

"47. Finally, we also briefly deal with the objection of the respondents regarding the stage at which the application under Section 311 was filed. The respondents have placed reliance onSwapan Kumar(supra), a two judge Bench decision of this Court, to argue that the application should not be allowed as it has been made at a belated stage. The Court inSwapan Kumar(supra) observed:

"11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has wide power under this Section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.

12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision."

48.In the present appeal, the argument that the application was filed after the closure of the evidence of the prosecution is manifestly erroneous. As already noted above, the closure of the evidence of the prosecution took place after the application for the production of the decoding register and for summoning of the witness under Section 311 was dismissed. Though the dismissal of the application and the closure of the prosecution evidence both took place on 13 November 2021, the application by the prosecution had been filed on 15 March 2021 nearly eight months earlier. As a matter of fact, another witness for the prosecution, Rajesh Kumar Singh, was also released after examination and cross-examination on the same day as recorded in the order dated 13 November 2021 of the trial court.

49.The Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. This Court inZahira Habibulla H. Sheikh(supra) while dealing with the prayers for adducing additional evidence under Section 391 CrPC at the appellate stage, along with a prayer for examination of witnesses under Section 311 CrPC explained the role of the court, in the following terms:

"43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence-collecting process.They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness."

(emphasis supplied)

50.Further, inZahira Habibullah Sheikh (5)(supra), the Court reiterated the extent of powers under Section 311 and held that:

"27. The object underlying Section 311 of the Code 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 section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry.In Section 311 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 whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."

(emphasis supplied)

51.The Court while reiterating the principle enunciated inMohanlal Shamji Soni(supra) stressed upon the wide ambit of Section 311 which allows the power to be exercised at any stage and held that:

"44. The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. : (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. InMohanlal v.Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, "any court", "at any stage", or "any enquiry or trial or other proceedings", "any person" and "any such person" clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code.The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, "essential" to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.

(emphasis supplied)

52. While reiterating the decisions of this Court inKarnel Singh v.State of M.P., (1995) 5 SCC 518,Paras Yadav v.State of Bihar, (1999) 2 SCC 126,Ram Bihari Yadav v.State of Bihar, (1998) 4 SCC 517 andAmar Singh v.Balwinder Singh, (2003) 2 SCC 518 this Court held that the court may interfere even at the stage of appeal:

"64. It is no doubt true that the accused persons have been acquitted by the trial court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of the law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on the legal process and the resultant decisions of courts ? coram non judis and non est. There is, therefore, every justification to call for interference in these appeals.""

In view of above fact that PW-1 and PW-2 were cross examined in detail and application to recall them under Section 311 Cr.P.C. was filed belatedly after all other evidences were concluded, therefore, in the light of Varsha Garg (supra), I do not find any illegality in the impugned order.

Accordingly, the application stands rejected.

Order Date :- 9.11.2022

Nirmal Sinha

(Sl. No. 40/321 fresh cases)