Allahabad High Court
Manohari vs State Of U.P. And Anothers on 8 February, 2023
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- APPLICATION U/S 482 No. - 1552 of 2023
Applicant :- Manohari
Opposite Party :- State Of U.P. And Anothers
Counsel for Applicant :- Sati Shanker Tripathi,A.K. Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Sati Shanker Tripathi, learned counsel for the applicants, learned A.G.A. and perused the record.
Pursuant to the earlier order of this Court learned counsel for the applicants has filed supplementary affidavit which is taken on record.
By means of the present 482 Cr.P.C. application, the applicants is assailing the legality and validity of the summoning order dated 14.12.2022 passed by Additional Sessions Judge, Court No. 10, Mathura by which the learned Trial Court has rejected the application no. 237kha moved by the accused-applicant to summon the doctor, who medically examined the co-accused Diwan Singh in order to prove the cross case. By the said order the application No. 237-kha was stand rejected.
Submission made by the counsel that in S.T. No. 966 of 2022 (State Vs. Diwan Singh & Ors.) under Section 302 and 504 IPC, P.S. Vrindavan, District Mathura which was pending before the Additional Sessions Judge, Court No. 10, Mathura an application was moved on the side of the accused to summon the one Dr. A.N. Goel who examined the injuries of co-accused Diwan Singh (hence deceased).
The genesis of the case starts from that way back in the year 2002 on 10.09.2002, an FIR was lodged by Amar Singh against the Diwan Singh, Manohari, Komal and Vishnu under Sections 302 and 504 IPC, P.S. Vrindavan, District Mathura in this transaction one Chandra Pal has lost his life and the police has submitted the charge-sheet against the Manohari and Diwan Singh. During the pendency of the aforesaid sessions trial co-accused Diwan Chand has died naturally. Thus, for all practical purposes the trial against Diwan Chand stood abated.
It has been argued by the learned counsel for the applicant that in this transaction the co-accused Diwan Chand has also sustained injuries and was examined by the then Dr. A.N. Goel. He is now retired. Learned Counsel for the applicant submits that in order to establish the injuries sustained by the co-accused Diwan Chand (hence deceased) his presence is required and that is why the application No. 237-kha was moved by applicant.
From the order-sheet it is clear that on 09.10.2006 the statement of accused persons under Section 313 Cr.P.C. was fixed, and Diwan Chand who died and hence on 22.11.2019 the trial against him stood abated.
It is contended by the learned counsel for applicant that in order to establish the cross case the doctor has been summoned in the case of Hon'ble Apex Court Natasha Singh Vs. CBI 2013 0 (SCC) 828 the Hon'ble Apex Court in paragraph 14 of the judgment has pointed out that the power conferred under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as 'any Court', 'at any stage", or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.
Taking the help of aforesaid guidelines the court finds that in the interest of justice Dr. A.N. Goel may be summoned by the Court concerned who shall made himself available to the Court during any date 13.02.2023 to 16.02.2023 and the accused persons who are insisting to summon shall pay Rs. 5,000/- on his appearance and deposition before the court concerned.
It is made clear that this is one and last opportunity is provided to attain the above objective of just and fair, the doctor should be examined as and when he appear before the court and no further opportunity shall be granted to the applicant for this purpose.
Since the matter is pending 2006, this Court expects from the court below that he would decide the matter latest by 31.05.2023 on merits.
Learned counsel for the applicant on behalf of his client undertakes that he would render a police cooperation in early conclusion of trial would be decided by the early call and the same to be decided by aforesaid case.
With the aforesaid observations, the present 482 Cr.P.C. application stands disposed of.
Order Date :- 8.2.2023
Vikram
