Allahabad High Court
Babu vs State Of U.P. And Another on 13 September, 2022
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 84
Case :- APPLICATION U/S 482 No. - 16603 of 2022
Applicant :- Babu
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Chandra Bhan Dubey,Anil Kumar Dubey
Counsel for Opposite Party :- G.A.,Ajay Kumar Srivastava
Hon'ble Saurabh Shyam Shamshery,J.
Heard Shri. Chandra Bhan Dubey, learned counsel for applicant, Ajay Kumar Srivastava, learned counsel for the O.P. No.2 and Shri. Paritosh Malviya, learned A.G.A.
By means of this application, applicants have prayed for setting-aside the impugned order dated 3.1.2022 passed by learned Additional Sessions Judge/Special Judge SC/ST Act in Special S.T. No. No.18/2017 State Vs. Pulkit alias Sheru and others under sections 363, 364-A, 320, 201 and 420 I.P.C. and under Sections 3 (2) (V) of SC/ST Act, Police Station-Doghat, District-Baghpat.
Applicant is one of the accused who is facing trial in Special S.T. No. No.18/2017 under the sections referred above and presently the status of trial is at the stage of arguments.
Learned counsel for applicant submits that at the fag end of trial, learned Sessions Court has exercised his powers under Section 311 Cr.P.C. whereby he summoned two persons namely Ishwar Singh and and Sukh Pal.
Counsel for applicant further submits that the aforesaid persons were not even named in the F.I.R. nor in the statement recorded during investigation and for the first time, their names were mentioned in the evidence of P.W.2, therefore to summon these persons at this stage is not just for the decision of the case.
Learned counsel for the O.P. No.2 and learned A.G.A. have opposed the above submission that scope of Section 311 Cr.P.C. can be exercised at any stage before the judgment is pronounced if it appears to be essential for just decision of the case.
Scope of Section 311 Cr.P.C. has recently been discussed and reiterated by Supreme Court in V.N. Patil vs. K. Niranjan Kumar and others, (2021) 3 SCC 661 and relevant paragraphs 15 to 17 are quoted hereinafter:
"15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar Vs. State of Uttar Pradesh and Another 2011(8) SCC 136.
"17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."
16. This principle has been further reiterated in Mannan Shaikh and Others Vs. State of West Bengal and Another 2014(13) SCC 59 and thereafter in Ratanlal Vs. Prahlad Jat and Others 2017(9) SCC 340 and Swapan Kumar Chatterjee Vs. Central Bureau of Investigation 2019(14) SCC 328. The relevant paras of Swapan Kumar Chatterjee(supra) are as under:-
"10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.
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 vide 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."
17. The aim of every Court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice."
Trial Court has exercised his powers granted under Section 311 Cr.P.C. which appears to be essential for just decision of the case. Trial Court has to conduct trial to come to the conclusion to unearth truth, therefore, under the exercise of inherent powers such decision which is based on the material cannot be interfered with, therefore, prayers made in this application are rejected.
However, considering the above submission of counsel for the applicant that trial must be concluded expeditiously, this application is disposed of with direction to the trial court that it shall ensure the presence of two persons summoned by the impugned order within a period of three weeks from today and there examination and cross-examination shall be concluded within two days and thereafter final arguments can be heard expeditiously.
It is expected that the aforesaid proceedings shall be concluded within a period of four months from today.
Order Date:-13.9.2022
SB
(Serial No.20 out of 464 fresh cases)
