Allahabad High Court
Shyam Bihari Gautam vs State Of U.P. And Another on 19 July, 2023
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:143343
Court No. - 78
Case :- APPLICATION U/S 482 No. - 23945 of 2023
Applicant :- Shyam Bihari Gautam
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Utkarsh Khanna
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
Order on Criminal Misc. Amendment Application No. 01 of 2023
Heard learned counsel for the applicant and learned A.G.A for the State.
The amendment application is allowed.
Order on memo of application
1. Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.
2. The present application has been preferred under Section 482 Cr.P.C. against order dated 26.05.2023, passed by the learned Special Judge (Prevention of Corruption Act), Meerut, in Special Session Trial No. 20 of 2001 (State of U.P. vs. Shyam Bihari Gautam), under Section 7, 13 of Prevention of Corruption Act, P.S. Jamnapaar, District Mathura, whereby, the application filed by the accused-applicant under Section 311 Cr.P.C. for recalling of PW-6 Inspector Suraj Pal Singh for further cross-examination has been rejected.
3. It has been argued by learned counsel for the applicant-accused that the impugned order is against facts and law and thus, liable to be set aside. It was pointed out that after examination of PW-6 Inspector Suraj Pal Singh, who was Investigating Officer, one more witness PW-7 Mohd. Yusuf Shekh has been examined. In view of certain facts emerged in the statement of PW-7 Mohd. Yusuf Shekh, it is necessary to ask certain questions from PW-6 Suraj Pal Singh and thus, the application for recalling of PW-6 Inspector Suraj Pal Singh for further cross-examination was filed. The said application has been rejected by the trial Court by passing impugned order dated 26.05.2023. It was submitted that in view of the facts of matter, in the interest of justice, further cross-examination of PW-6 Inspector Suraj Pal Singh is necessary and thus, the impugned order may be set aside.
4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order.
5. I have considered the rival submissions and perused the record.
6. In Mohanlal Shamji Soni v. Union of India & Anr., AIR 1991 SC 1346, the Hon'ble Apex Court examined the scope of Section 311 Cr.P.C., and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the Court to prove a fact, or a point in issue. However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. The court has a duty to determine the truth, and to render a just decision. The same is also the object of Section 311 Cr.P.C., wherein the court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re- examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.
7. In Rajeswar Prasad Misra v. The State of West Bengal & Anr., AIR 1965 SC 1887, the Apex Court considered the power and jurisdiction vested in the court, with respect to taking additional evidence, and observed, that it may not be possible for the legislature to foresee all situations and possibilities and therefore, the court must examine the facts and circumstances of each case before it, and if it comes to the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered, and if such an action on its part is justified, then the court must exercise such power.
8. Keeping in view the above stated position of law, in the instant case, it is apparent from record that the said case is pending since the year 2001. It has been observed by the trial Court in the impugned order that the cross-examination of PW-7 Mohd. Yusuf Shekh has been completed within a time span of seven years. In the application filed by applicant/accused under Section 311 Cr.P.C., there is no such version that what questions have to be asked from PW-6 Inspector Suraj Pal Singh. Merely it has been alleged that in view of statement of PW-7 Mohd Yusuf Shekh, further cross-examination of PW-6 Inspector Suraj Pal Singh is necessary. In view of these facts and circumstances, there is absolutely nothing to show that the recalling of PW-6 Inspector Suraj Pal Singh is essential for just decision of case. The trial court has considered the entire facts in correct perspective and rejected application of applicant.
9. Considering the facts of the matter, including the fact that said case is pending since the year 2001, it appears that the application filed by the applicant/accused before the trial Court under Section 311 Cr.P.C. is misconceived and it has rightly been rejected by the trial Court. The application under Section 482 Cr.P.C. has no force and hence, liable to be dismissed.
10. Accordingly, the application under Section 482 Cr.P.C. is dismissed.
Order Date :- 19.7.2023
A. Tripathi
