Sirajuddin vs State Of U.P.And Another
2023 Latest Caselaw 26530 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


AFR
 
Reserved
 
Neutral Citation No. - 2023:AHC:187907
 
Court No.75
 
Case :- APPLICATION U/S 482 No. - 5372 of 2005
 

 
Appellant :- Sirajuddin
 
Respondent :- State of UP and another
 
Counsel for Appellant :- Vinod Prasad, Dhirendra Kumar Srivastava, Dinesh Kumar Singh, Mohd.N.Siddiqui, Pushkar Srivastava, Vinod Sharma
 
Counsel for Respondent :- Govt. Advocate, R.P. Srivastava
 

 
Hon'ble Umesh Chandra Sharma,J.

1. Heard Sri Dhirendra Kumar Srivastava, learned counsel for the applicant, learned AGA for the State and perused the record.

2. This application has been moved by the applicant to quash the order dated 03.05.2005 passed by Additional District and Sessions Judge, Court No.12, Varanasi in ST No.535 of 2002 (State Vs. Bafati), under Sections 363, 366, 376 IPC, Police Station Lohta, District Varanasi, whereby the learned trial court allowed the application 77kha and summoned the victim PW-3 for re-examination under Section 311 CrPC.

3. In brief, facts of the case are that informant Munir moved a written complaint on 24.04.2001 that on 20.04.2001 when his wife Jamila had gone to Dargah Sharif, Akbarpur and he had gone to Lallapura to meet his friend, his neighbourers Nizamuddin, Sirajuddin, Mainuddin sons of Bafati and Bafati himself entered into his house at about 02:00 a.m. In the night of 20.04.2001 they forcefully took away his 14 years old daughter Rizwana. When his niece Kallo opposed, they threatened to shoot her. Till now his daughter has not come back. After return of his wife he is informing the police for taking appropriate action. On the basis of the aforesaid complaint a case under Sections 363, 366A and 506 IPC was lodged against the accused persons and the charge sheet was submitted in the aforesaid sections after the investigation. The case was committed to the court of sessions which was transferred to the Court of ASJ, Court No.12, Varanasi and thereafter it was transferred to the Court of ASJ/Fast Track Court No.1, Varanasi.

4. After recording the evidence of victim PW-3, an application under Section 311 CrPC was moved that the statement of the victim recorded under Section 164 CrPC could not be proved. Hence, the concerned witness be summoned for re-examination to prove the statement under Section 164 CrPC. It has also been averred that during the course of deposition she was so affraid that she had forgotten to depose about the same, hence, it is expedient to recall the witness for proving her statement recorded under Section 164 CrPC.

5. The application was opposed by the defence but it was allowed on the ground that during the course of examination-in-chief, no evidence of the witness could be recorded for proving her statement under Section 164 CrPC and accordingly the application was allowed and the witness was summoned for re-examination.

6. Being aggrieved, the present application has been moved by the accused Sirajuddin that the informant Munir had lodged a false and fabricated FIR on which basis the charge-sheet has been submitted by the IO. The trial court has allowed the application without applying judicial mind just to fill up lacuna of the prosecution case which is illegal, unjust and is liable to the quashed. During the examination of the victim PW-3, she was questioned in respect of her statement under Section 164 CrPC and in fact on the contradiction and omission put by her, there was no justification for the trial court to pass the impugned order. The statement under section 164 CrPC has not been exhibited but it does not make any difference in the case as the statement under section 164 CrPC is admissible in evidence under Section 80 of the Indian Evidence Act without its formal proof. In the garb of the impugned order now prosecution wants to fill lacuna of the prosecution which cannot be permitted because it will amount to unfair trial, therefore, the impugned order dated 03.05.2005 be quashed.

7. During the course of hearing of this application opposite party no.2 left parvi though a counter affidavit had been filed on behalf of opposite party no.2, the victim of the case in support of the impugned order and against the petition against which a rejoinder affidavit has also been produced. At the time of hearing none appeared from the side of opposite party no.2 hence heard Sri Dhirendra Kumar Srivastava, learned counsel for the applicant and learned AGA for the State and the application is decided on merit.

8. Before concluding the case it would be appropriate to reproduce section 311 CrPC alongwith relevant citations which are as under:-

9. For convenience Section 311 CrPC is reproduced as under:-

"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."

10. From the above, it is very much clear that there are two part of this Section. According to first part of the Section, the Court can exercise the power :-

(1) to summon any person as a witness, or.

(2) to examine any persons in attendance, though not summoned as a witness, or,

(3) to recall and re-examine any person already examined.

The second part, which is mandatory and imposes an obligation on the Court:-

(1) to summon and examine, or

(2) to recall and re-examine any such person, if his evidence appears to be essential to the just decision of the case.

11. In Raja Ram Prasad Yadav Vs. State of Bihar and another, AIR 2013 SC 3081, it has been held that it is, therefore imperative that invocation of Section 311 CrPC 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.

12. The averments of paragraphs-14 to 17 in VN 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."

13. In this case the statement of PWs-1, 2 and 3 had already been recorded before the application under Section 311 CrPC was moved. For the purposes of this petition the statement of the victim PW-3 is material. This witness has deposed on oath in the court that in the fateful night none of the accused had entered in her house and none of the accused had taken away her forcefully and none of the accused had raped her. This witness was declared hostile and she was cross-examined by the ADGC of the court in which she deposed that she had gone to Himachal Pradesh with accused Nijamuddin at her own will where accused had not co-habitated with her. She was taken back therefrom by the Varanasi Police and her statement was recorded before the Magistrate. She had falsely stated that in the fateful night accused persons had entered in her house, closed her mouth with clothes and had taken herself forcefully near the grave. The witness clearly deposed that the evidence adduced by her in the court is true and correct. She had given the statement under Section 164 CrPC after being directed by some one else. The witness further totally denied the statement recorded under Section 164 CrPC. The witness also deposed that at that time also she loved Nijamuddin and even today. The witness also denied the statement recorded by the IO in favour of the prosecution under Section 161 CrPC.

14. According to this Court, from the statement of the victim, it is very much clear that she had neither supported the prosecution version nor the statements under Sections 161 and 164 CrPC. The opportunity to prove the statement under Section 164 CrPC was very much available to the prosecution which had not been availed. From the perusal of the statement of the victim it is very much clear that the witness has been examined with regard to Section 164 CrPC in 2-3 pages, therefore, it cannot be said that some more opportunity ought to have been provided to the prosecution to prove the statement under Section 164 CrPC. It is very much clear that though the victim has accepted that she was produced before the Magistrate and her statement was recorded and she had signed it but she has not owned the statement saying that it was not her statement with free will but it was under compulsion. According to this Court, in such a situation it was not necessary for the Court to summon the witness again under Section 311 CrPC. As the witness has already deposed that she had given the statement before the Magistrate, therefore, the same could be exhibited without any further formality.

15. So far as the evidentiary value of the statement under Section 161 and 164 CrPC is concerned, both have almost equal value and if the same are not supported during the trial, the witness may be contradicted.

16. In Utpal Das Vs. State of West Bengal, AIR 2010 SC 1894 and in Baijnath Singh Vs. State of Bihar, 2010 (70) ACC 11 (SC), it has been held that an FIR does not constitute a substantive evidence. The statement of a witness recorded under Sections 161 or 164 CrPC can only be used to contradict or corroborate the witness under Section 145 or 157 of the Indian Evidence Act but it cannot be used as substative evidence.

17. In view of the above also, it can be said that the witness had been examined at length with regard to her statement under section 161 and 164 CrPC, there was no need to recall her again for re-examination. When the witness had not corroborated her statement recorded under Section 164 CrPC and she had been already contradicted under Section 145 of the Indian Evidence Act, even then if she was summoned, certainly it would cause a prejudice to the accused persons. In view of the testimony of the victim recorded in the court it can safely be said that those statements are nothing but a waste paper. According to this Court, there was no occasion to pass the impugned order considering the nature of the evidence of the victim PW-3. The testimony on oath in the court during the course of trial has overriding effect.

18. From the perusal of the above, it is very much clear that the victim PW-3 has not supported her statement recorded under Sections 161 and 164 CrPC and her statement on oath is contrary to the prosecution. Hence, the order for recalling the witness was of no avail. Thus, the application under Section 482 CrPC deserves to be allowed to prevent abuse of the process of the Court and to secure the ends of justice.

19. One more ground has arisen during the pendency of this petition that in view of the judgment of Asian Resurfacing of Road Agency Private Limited Vs. Central Bureau of Investigation, (2018) 16 SCC 299, the trial court started the trial treating the stay order passed by this Court to be vacated and recorded the statements of rest of the witnesses, the statement of the accused under Section 313 CrPC and after hearing the argument, acquitted the accused persons giving benefit of doubt on 30.09.2022. A photocopy of the certified copy of the judgment has been produced by the learned counsel for the applicant for perusal of this Court.

20. It is noteworthy that the accused persons had taken shelter of this Court and had obtained interim stay order and when the interim stay order passed by this Court was ignored in view of the judgment in Asian Resurfacing (supra), the State of UP or the respondent no.2 had not questioned the proceedings of the trial court, therefore, the respondents have no ground to claim the benefit of the same. If the respondents feel themselves to be aggrieved, the remedy is open for them to seek remedy available under the law against the order and judgement of acquittal.

21. On the basis of above, this Court is of the considered view that the application is liable to be allowed. (Though it has no importance after decision of the case)

Order

22. The application under Section 482 CrPC is allowed and the impugned order dated 03.05.2005 regarding summoning PW-3 for re-examination under Section 311 CrPC is hereby quashed.

23. A copy of this judgment be sent to the Court of ASJ/FTC-I, Varanasi to keep on record.

Order Date :- 27.09.2023

Shahroz

(Umesh Chandra Sharma,J.)