Kharpattu @ Bhagauti Prasad vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 10197 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- APPLICATION U/S 482 No. - 3348 of 2023
 
Applicant :- Kharpattu @ Bhagauti Prasad
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko.
 
Counsel for Applicant :- Hari Bux Singh,Akhilesh Pratap Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

Heard Sri Hari Bux Singh, Advocate assisted by Sri Akhilesh Pratap Singh, learned counsel for the applicant, Sri Anurag Verma, learned A.G.A. for the State/ opposite party and perused the record.

The instant application under Section 482 Cr.P.C. has been filed by the accused/ applicant praying inter alia following relief:-

"Wherefore it is most respectfully prayed that this Hon'ble Court may kindly pleased to allow this 482 Cr.P.C. Petition and quash/set aside the order dated 21.03.2023 passed by Chief Judicial Magistrate, District Lakhimpur Kheri Annexure No. 4 to this 482 Cr.P.C. Petition in Criminal Case No.-2073/2011, Crime No./F.I.R. No.-4783/2008, Under Section-406, 420 I.P.C., P.S.-Kotwali Sadar, District-Kheri State Vs. Kharpattu @ Bhagauti Prasad and direct the Chief Judicial Magistrate, District Lakhimpur Kheri to summon the P.W.-1 Smt. Shivrani and P.W.-2 Shalikram and allow the petitioner to cross examine P.W.-1 and P.W.-2 in Criminal Case No.-2073/2011 Crime No./F.I.R. No.-4783/2008, Under Section-406, 420 I.P.C., P.S.-Kotwali Sadar, District-Kheri State Vs. Kharpattu @ Bhagauti Prasad in the interest of justice."

Learned counsel for the applicant has submitted that an application dated 21.03.2023 moved by the applicant for recall of witnesses, namely, PW-1, Smt. Shivrani and PW-2, Shalikram came to be rejected vide impugned order dated 21.03.2023 on the ground which is not tenable in view of law laid down by the Hon'ble Supreme Court in Natasha Singh vs. Central Bureau of Investigation (State) reported in (2013) 5 SCC 741.

His further submission is that, even otherwise, having regard to the legislative intent behind incorporating provisions contained in Section 311 Cr.P.C. and more particularly having regard to the later part of this provision, any Court and more particularly the court concerned, which passed the impugned order, ought to have addressed to the issue of failure of justice to the applicant due to refusal of recall the evidence as prayed.

It is also submitted by learned counsel for the applicant that the trial of the aforesaid case being conducted against the applicant under Sections 406 and 420 I.P.C. is of a serious nature. His further submission is that in the right of fair trial, which is available to the applicant, the right of cross-examination is implicit. In a criminal trial every person, who is facing a charge in respect of any offence, has a right to reasonably defend himself which necessarily implies reasonable opportunity of cross-examination.

Learned counsel for the applicant has also very fairly submitted that the present applicant neither intended previously nor he intend in future to cause any delay in concluding the aforesaid proceeding. Therefore, in case, the Court grants any indulgence, the present applicant would be complying with the Court's order in letter and spirit. He, thus, prays that the impugned order being palpably illegal deserves to be quashed and the instant application under Section 482 Cr.P.C. deserves to be allowed.

To buttress his aforesaid submissions, learned counsel for the applicant has also placed reliance upon the judgment rendered by the Hon'ble Supreme Court in Varsha Garg vs. State of Madhya Pradesh and others reported in 2022 SCC OnLine SC 986.

Per contra, learned A.G.A. for the State has vehemently opposed the prayer by submitting that the trial of aforesaid criminal case is pending since the year 2011. Reasonable opportunity was afforded to the accused/ applicant. The instant application under Section 482 Cr.P.C., at a belated stage, has been moved malafidely and with a view to stall the proceeding.

Having heard learned counsel for the applicant, learned A.G.A. for the State and upon perusal of record, this Court finds that PW-1, Smt. Shivrani and PW-2, Shalikram were examined in the learned trial Court. An application dated 29.11.2022 came to be moved by the present application for permitting them to cross-examine the aforesaid witnesses in respect of specific questions which were mentioned in the said application, which came to be dismissed vide impugned order dated 21.03.2023.

The Hon'ble Supreme Court in V. N. Patil vs. K. Niranjan Kumar and others reported in (2021) 3 SCC 661, in para 15 has held as under "

"15. The object underlying Section 311 CrPC 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 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 the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion".

This Court is also mindful of the fact that the Hon'ble Supreme Court in Varsha Garg's case (supra) in paras 31 to 37 has held as under:-

"31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court "may":

(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and

(ii) Recall and re-examine any person who has already been examined.

32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court "shall" summon and examine or recall and re-examine any such person "if his evidence appears to the Court to be essential to the just decision of the case". Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.

33. The first part of the statutory provision which uses the expression "may" postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression "shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case". Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.

34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed:

"16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision either discretionary or mandatory depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice."

35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the "evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means." In that context the Court observed:

"18 Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by 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 rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties."

36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P.19, State of W.B. v. Tulsidas Mundhra20, Jamatraj Kewalji Govani v. State of Maharashtra21, Masalti v. State of U.P.22, Rajeswar Prosad Misra v. State of W.B.23 and R.B. Mithani v. State of Maharashtra24, the Court held:

"27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."

37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest."

The Hon'ble Supreme Court in Natasha Singh's case (supra) in para-13 has held as under:-

"13. Similarly, in P. Sanjeeva Rao v. State of A.P. [(2012) 7 SCC 56 : (2012) 3 SCC (Cri) 1 : AIR 2012 SC 2242] this Court examined the scope of the provisions of Section 311 CrPC and held as under : (SCC pp. 63-64, paras 20 & 23)

"20. Grant of fairest opportunity to the accused to prove his innocence is the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs [(2000) 10 SCC 430 : 2001 SCC (Cri) 1488] . The following passage is in this regard apposite : (SCC p. 432, para 6)

'6. ? In such circumstances, if the new counsel thought to have the material witnesses further examined the court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.'

23. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. ? we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to the prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself."

(emphasis in original)""

Thus, having regard to overall facts and circumstances of this case and in order to prevent failure of justice to the present applicant whose right to defend himself would be seriously prejudiced in want of cross-examination of PW-1, Smt. Shivrani and PW-2, Shalikram, this Court finds that the impugned order dated 21.03.2023 deserves to be quashed and is hereby, quashed.

It is directed to the learned trial Court to dispose of the application dated 29.11.2022, under Section 311 Cr.P.C. moved by the present applicant, afresh by means of speaking and reasoned order with utmost expedition in the light of observations made herein above, in respect of PW-1, Smt. Shivrani and PW-2, Shalikram only.

It is needless to mention that, in case, the learned trial court, after hearing afresh, comes to the conclusion that it is necessary to recall PW-1, Smt. Shivrani and PW-2, Shalikram, the same may be done on one date to be fixed by the learned trial Court without giving any further liberty to the applicant to get the cross-examination deferred.

In such eventuality, learned trial Court shall also be at liberty to impose a reasonable cost to be given to PW-1, Smt. Shivrani and PW-2, Shalikram, who are so recalled for cross-examination.

With the aforesaid observations, the instant application under Section 482 Cr.P.C. is finally disposed of.

(Ajai Kumar Srivastava-I, J.)

Order Date :- 7.4.2023

cks/-