Adbul Kalam vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 12324 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- APPLICATION U/S 482 No. - 3891 of 2023
 

 
Applicant :- Adbul Kalam
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Affairs Lko. And Another
 
Counsel for Applicant :- Vivek Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

1. Heard Sri Vivek Kumar Pandey, learned counsel for the applicant, Sri Ambrish Verma, learned A.G.A. for the State and perused the entire record.

2. In view of the order, which is proposed to be passed today, notice to opposite party No.2 is hereby dispensed with.

3. The instant application has been filed by the applicant for quashing the impugned order dated 03.02.2023 passed by the learned Additional Sessions Judge/ F.T.C. First, Gonda in Special Sessions Trial No.131 of 2019 (State vs. Abdul Kalam) arising out of Case Crime No.152 of 2018, under Sections 354Kh, 323, 504 I.P.C. and Sections 7/8 POCSO Act, Police Station Dhanepur, District Gonda.

4. Learned counsel for the applicant submits that the aforesaid case is pending against the applicant under Sections 354Kh, 323, 504 I.P.C. and Sections 7/8 POCSO Act. The prosecution witness, namely, P.W.-1, complainant has been examined in the learned trial Court on 07.04.2021. Thereafter, the cross examination of P.W.-1, complaint was done on the same day i.e. on 07.04.2021. The prosecution witness, namely, P.W.-3, victim has been examined in the learned trial Court on 21.05.2022. Thereafter, the cross examination of P.W.-3, victim was done on the same day i.e. on 21.05.2022. His further submission is that during the cross-examination of P.W.-1 and P.W.-3, certain relevant questions could not be asked. Therefore, the present applicant moved an application in the learned trial Court under Sections 311 Cr.P.C. for recalling P.W.-1 and P.W.-3 to cross examine, which came to be rejected vide impugned order dated 03.02.2023.

5. It is also submitted by learned counsel for the applicant that the trial of the aforesaid case being conducted against the applicant under Sections 354Kh, 323, 504 I.P.C. and Sections 7/8 POCSO Act 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 also necessarily implies reasonable opportunity of cross-examination.

6. Learned counsel for the applicant has also very fairly submitted that the present applicant neither intended earlier 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 deserves to be allowed.

7. To buttress his aforesaid submissions, learned counsel for the applicant has 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.

8. Per contra, learned A.G.A. appearing for the State has vehemently opposed the prayer by submitting that the trial of aforesaid Special Sessions Trial is pending since the year 2019. Reasonable opportunity was afforded to the present applicant, therefore, the opportunity of cross-examination of P.W.-1 and P.W.-3 came to be closed. This application, at a belated stage, has been moved malafidely and with a view to stall the proceeding.

9. Having heard learned counsel for the applicant, learned A.G.A. for the State and upon perusal of record, this Court finds that P.W.-1 and P.W.-3 were examined in the learned trial Court. An application dated 09.12.2022 came to be moved by the present applicant for permitting him to cross-examine the aforesaid witnesses, which came to be dismissed vide impugned order dated 03.02.2023.

10. 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".

11. 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."

12. 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 P.W.-1 and P.W.-3, this Court finds that the impugned order dated 03.02.2023 insofar as it relates to recall of P.W.-1 and P.W.-3 suffers from illegality as discussed aforesaid and the same is not sustainable to that extent only.

13. The upshot of aforesaid discussion is that the impugned order dated 03.02.2023 deserves to be quashed and the same is hereby quashed to the extent indicated above only in respect of recall of P.W.-1 and P.W.-3 under Section 311 Cr.P.C. with a direction to the learned trial court concerned to decide the application dated 09.12.2022 afresh by means of speaking and reasoned order with utmost expedition in the light of observations made herein above.

14. 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 the P.W.-1 and P.W.-3, 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.

15. In such eventuality, learned trial Court shall also be at liberty to impose a reasonable cost which will not be less than Rs.6,000/- to be given to P.W.-1, complainant and P.W.-3, victim, who are so recalled for cross-examination.

16. With the aforesaid observations, the instant application is finally disposed of.

(Ajai Kumar Srivastava-I, J.)

Order Date :- 21.4.2023

cks/-