Allahabad High Court
Rajpal And 2 Others vs State Of U.P. And Another on 23 November, 2022
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 86
Case :- APPLICATION U/S 482 No. - 33795 of 2022
Applicant :- Rajpal And 2 Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Dileep Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Karunesh Singh Pawar,J.
1. The petition has been filed under Section 482 CrPC for quashing impugned order dated 18.8.2022, passed by Sessions Judge, Hapur in S.T. No.437 of 2020 State vs. Rajpal Singh and others, arising out of case crime No.0189 of 2020 under sections 302, 201 I.P.C., P.S. Simbhawali, district Hapur, whereby application under section 311 CrPC has been rejected by the trial Court.
2. Heard learned counsel for the petitioners and learned A.G.A. for the State.
3. Learned counsel for the petitioners submits that the rejection order has been passed by the trial court on conjectures and surmises. It is submitted that five prosecution witnesses have turned hostile.
4. Learned A.G.A., on the other hand, has opposed the contention. It is submitted that P.W.1 has been examined at length. Statement of P.W.1 running into several pages is on record.
He further submits that examination of P.W.1 took place on 12.1.2021 and continued till 22.1.2021. However, application under section 311 CrPC has been given by the accused applicant on 14.7.2022 without explaining the delay in moving such application. It is further submitted that testimony of P.W.1 is intact and reason given by the trial court that only to exert pressure on P.W.1, the application under section 311 CrPC has been filed, so that he may also be declared hostile cannot be disbelieved. The present application is liable to be dismissed.
5. On due consideration to the argument advanced by the parties' counsel and perusal of the record, it appears that P.W.1 who has supported the prosecution case has been examined at length way back on 12.1.2021. The other prosecution witnesses have turned hostile. Application for recall of witnesses appears to have been given at a delayed stage only to fill the lacuna in evidence. No reason for delay has been given in the application under section 311 CrPC by the accused applicant.
Further, learned counsel for the accused applicants has not been able to show that the evidence of P.W.1 who is sought to be recalled is essential to the just decision of the case. The accused has no right to force the trial court to recall a particular witness for further examination. Supreme Court in Rajaram Prasa Yadav versus State of Bihar and others 2013(14)SCC 461 has held that exercise of power under Section 311 CrPC cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
Supreme Court in Ratanlal versus Prahlad Jat and others (2017)9 SCC 340 has held that delay in moving an application under section 311 CrPC is one of the important factors and reasons for the delay in making application must be assigned while filing the application.
In the case in hand, learned counsel for the accused applicants has not been able to point out any explanation for filing the application under section 311 CrPC after inordinate delay and as such, the petition is liable to be dismissed on this ground also.
6. On due consideration to what has been stated hereinabove and keeping in view the judgment of Supreme Court, I do not find any illegality in the impugned order.
7. The petition is accordingly dismissed.
Order Date :- 23.11.2022/kkb.
