Nanhe And Another vs State Of U.P. And Another
2023 Latest Caselaw 10369 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R
 
Reserved on 02.03.2023.
 
Delivered on 10.04.2023.
 
Court No. - 53
 

 
Case :- APPLICATION U/S 482 No. - 43085 of 2022
 

 
Applicant :- Nanhe And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ram Shiromani Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Umesh Chandra Sharma, J.

1. Heard learned counsel for the applicants, Sri Pankaj Kumar Tripathi, learned A.G.A for the State and perused the record.

2. This application under Section 482 Cr.P.C has been instituted by the applicants for quashing the order dated 17.10.2022 passed by Special Judge (E.C. Act) / Additional Sessions Judge, Court No. 4, Moradabad passed in Special Sessions Trial No. 336 of 2018 - State Vs. Nanhe & Anr., arising out of Case Crime No. 48 of 2018, under Sections 364, 302, 201 I.P.C, Police Station Katghar, District Moradabad, whereby the applications filed under Section 311 Cr.P.C. of the applicants/accused have been rejected.

3. In brief, the facts of the case are that after submission of the charge-sheet in the aforesaid crime number, the trial is going on. On 18.08.2022 and 15.09.2022 examination-on-chief of P.W 6 and P.W 7 had been recorded. On 18.08.2022 when the applicants' counsel was out of station, an adjournment application was moved and on 15.09.2022, the applicants' counsel was busy in another Court, the opportunity of cross-examination from the witnesses had been closed and when the application under Section 311 Cr.P.C was moved by the applicants on 17.10.2022, it was rejected same day by the impugned order stating therein that examination-in-chief of P.W. 6 had been recorded on 18.08.2022 and allowing the adjournment application on 22.08.2022 had been fixed for cross-examination. On 22.08.2022 P.W 6 was present since morning, but none appeared to cross-examine him hence at 3:20 cross examination had been closed.

4. On 15.09.2022 the examination-in-chief of P.W. 7 S.I. Mukesh had been recorded at 11:00 a.m. and the applicants were directed to call for their counsels but the counsels did not appear, therefore opportunity to cross examining P.W. 7 had been closed at 4:45 p.m.

5. The learned trial court concluded that since sufficient opportunity had been provided, but the witnesses had not been cross-examined, hence, there was no sufficient ground to allow the application 45-B under Section 311 Cr.P.C and accordingly rejected the application and fixed 07.11.2022 for examination of rest of the witnesses. Being aggrieved, this application has been moved on behalf of the applicants. Neither the State nor opposite party no. 2 have filed any objection/counter affidavit.

6. The application had been moved during the course of examination of the witnesses. It is crystal clear that the trial court has not provided proper opportunity and equal protection of law to the defence side while several dates have been given to the prosecution for examination of the witnesses without any adjournment, the learned trial court closed the cross-examination same day, rejecting the adjournment application of the defence.

7. Learned trial judge could not understand the abstracts behind the section in which the accused persons had moved application to recall the witnesses for cross examination.

8. It would be proper to quote Section 311 Cr.P.C, which is as under :

"Section 311 in The Code Of Criminal Procedure, 1973.

311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."

9. In Raja Ram Prasad Yadav Vs. State of Bihar and Anr. A.I.R 2013 (SC) 3081, it has been held that it is, therefore imperative that invocation of Section 311 Cr.P.C and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provisions, namely, for achieving a just decision of the case. The power vested under the said provisions is made available to any court at any stage in any inquiry or trial or other proceedings initiated under the code for the purpose of summoning any person as a witness or for examining any persons in attendance, even though not summoned as witnesses or to re-call or re-examine any person in attendance. In so far as recalling and re-examining of any person already examined, the court must necessarily consider and ensure that such re-call and re-examination of any person, appears in the view of the court to be essential for the just decision of the case.

10. On the above discussion, this Court comes to the conclusion that the learned trial court had committed manifest error during the course of trial in recording the evidence and has proceeded with the case in harried manner in violation of the principles of natural justice and fair trial. The impugned order is not sustainable in the eye of law and deserves to be quashed.

11. In R.B. Mithani Vs. State of Maharashtra, A.I.R. 1971, Supreme Court 1630, the Hon'ble Supreme Court has held that additional evidence summoned must be necessary not because, it would be impossible to pronounce judgement but also because there would be failure of justice without it. Though the power must be exercised sparingly and only in suitable case but once such action is justified, there is no restriction on the kinds of evidence, which may be received. It may be formal or substantial in nature.

12. In State of Haryana Vs. Ram Prasad 2006 Cr.L.J. 1001, the Punjab & Haryana High Court held that where the examination and re-examination of the witness is essential for the just decision of the case, it is obligatory of the Court to summon such a witness.

13. The Orissa High Court in Nira Vs. State of Orissa, 2008 Crl. L.R. 1315, held that this power can be exercised by the Court even at the stage of preparation of the judgment.

14. In State of Sikkim Vs. Thukchuk Lachungpa 2005, Crl. L.R 201, the Sikkim High Court has held that this power can be exercised even though at the earlier stage of the trial, the Court has rejected such application.

15. In Rama Paswan Vs. State of Jhharkhand, 2007 Crl. L.J. 2750, the Hon'ble Supreme Court has held that it would not be improper, the exercise of the power 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, inquiries and trials under the Court and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or inquiry.

16. In Ismail Baba Saheb Vs. A.A. Hulagen, 1997 Crl.L.J. 1804, the Karnataka High Court, has held that where the production of the document and the summoning of the witness is necessary for the just decision of the case, the rejection of the application on the ground that document has not been produced from proper custody is not proper.

17. In Raju Vs. State of Madhya Pradesh, 2002, Crl.L.J. 2367, the Madhya Pradesh High Court has held that where the documents filed with the Charge-sheet have not been proved, important documents relevant for the just decision of the trial have not been filed, the Court would direct their production exercising of power under Section 311 Cr.P.C. and Section 165 of Evidence Act.

18. In Raj Deo Sharma Vs. State of Bihar, A.I.R 1999 Supreme Court 3524, the Hon'ble Supreme Court has held that once it is found that the evidence is essential for the just decision of the case, the witness can be recalled at any time before pronouncement of the judgment, the time factor would not come in the way.

19. In Mohan Lal Sham Ji Soni Vs. Union of India, 1991 Cr.L.J. 1521, Supreme Court, the Hon'ble Supreme Court has held that an inquiry or trial in a criminal proceedings comes to an end or reaches its finality when the order or judgment is pronounced and until then the Court has power to use this Section.

20. In Rajendra Prasad Vs. Narcotic Cell Delhi, A.I.R 1999, Supreme Court 2292, the Hon'ble Supreme Court has held that it can not be laid down as legal preposition that the Court can not exercise the power of re-summoning any witness, if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered latches only when the defence highlighted them during final arguments. The power of the Court is plenary to summon or even re-call any witness at any stage of the case, if the Court considers it necessary for a just decision.

21. As already said that there are two parts of the Section 311, in this context, the Hon'ble Supreme Court in Jamat Raj Vs. State of Maharashtra, A.I.R 1968, Supreme Court 178 has held that the user of "May" in first part "Shall" in second shows, that when the first part is discretionary, second part is obligatory.

In the Case of Mohan Lal (Supra) the Hon'ble Supreme Court has also held that the power to summon and examine any witness may be exercised at the stage, opportunity however is to be given to the parties to rebut the evidence.

22. Para 14 to 17 of V.N Patil Vs. Niranjan Kumar and others, (2021) 3 SCC 661; are relevant hence they are reproduced as under :-

"14. 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".

15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240 : (SCC p. 141, para 17)

"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 v. State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547 and thereafter in Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 : (2017) 3 SCC (Cri) 729 and Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839 . The relevant paragraphs of Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839 are as under: Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839, SCC p. 331, paras 10-11)

"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.

23. In this case, the accused-appellants have right to cross-examine the witnesses. Since P.W. 6 & 7 were the material witnesses, therefore to provide full opportunity to cross-examine such witnesses was the duty of the trial court.

O R D E R

24. (a) This Application U/s 482 CrPC is allowed.

(b) The impugned order dated 17.10.2022, passed by the trial court is hereby quashed.

(c) The learned trial court is directed to re-call PW 6 & 7 for their cross-examination on behalf of all the accused persons.

(d) Let a certified copy of this order be sent to the concerned court for its compliance immediately.

Order Date :- 10.04.2023.

Vinod.