Allahabad High Court

Balwan Singh And 4 Others vs State Of U.P. And Another on 3 June, 2024





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:100883
 
Court No. - 82
 

 
Case :- CRIMINAL REVISION No. - 763 of 2024
 

 
Revisionist :- Balwan Singh And 4 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Bipin Kumar,Mohd. Naushad Siddiqui
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Kshitij Shailendra,J.

1. Heard Sri Bipin Kumar, learned counsel for the applicants and the learned AGA for the State-opposite party no.1.

2. The instant revision has been filed challenging the order dated 25.01.2024 whereby the application 58-Ka filed by the applicants under Section 311 CrPC in S.T. No.203 of 2020 (State Vs. Balwan Singh and others) arising out of Case Crime No.309 of 2011, P.S. Akbarpur, District Kanpur Dehata, has been rejected.

3. Learned counsel for the applicants submits that, initially, twice, final reports were submitted by the Investigating Officer but, later on, the applicants were summoned on a protest petition filed by the informant. He submits that the application 58-Ka was filed requesting the Sessions Court to summon the then Investigating Officer Sri Deen Dayal Verma and Incharge of Police Station concerned Sri Dinsh Tripathi as defence witnesses which should have been allowed to establish that under what circumstances the final reports were submitted. Learned counsel places reliance upon an order of the Supreme Court dated 02.02.2024 passed in SLP (Crl.) No.10756 of 2023 and submits that there is no bar in the law as regards acceptance of such prayer made by the accused.

4. Per contra, learned AGA submits that the learned trial court has considered the submissions advanced by the applicants and has recorded that the protest petition was allowed in 2013 and after a period of six years, the applicants were summoned in 2019 and when the statement of the accused was recorded under Section 313 CrPC, they mentioned that they did not want to produce any defence witnesses. It is also contended that the case is being finally heard by the trial court and the application 58-Ka had been moved in order to delay the proceedings.

5. Having heard learned counsel for the parties, I find that the sessions trial is at the verge of conclusion. The order of the Supreme Court cited by the learned counsel for the applicants has, with due respect, no application in the facts of the present case, inasmuch as the question that had arisen before the Supreme Court in the said proceedings was as to whether the witnesses whose name had been included in prosecution list but he was not examined on behalf of the prosecution, would be permitted to be examined as defence witness. The Apex Court observed that there is no bar in law for examination of such witness but also observed that it is for the trial court to consider evidentiary value of other witnesses while coming to its conclusion.

6. Section 311 CrPC reads as follows:-

"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."

7. In this backdrop, it would be useful to make a reference to certain decisions rendered by the Supreme Court on the interpretation of Section 311 of the Code, wherein the Apex Court highlighted the basic principles which are to be borne in mind while dealing with an application under Section 311 of the Code.

8. In Natasa Singh v. C. B. I., (2013) 5 SCC 741, the Apex Court, after referring the various decisions of the Supreme Court, has observed and held as under: (SCC, p. 748-49, para 15,16)

"15. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 of Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. 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.

16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interest of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardised. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same." (Vide: Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr.: AIR 1958 SC 376, Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors.: AIR 2004 SC 3114, Zahira Habibullah & Anr. v. State of Gujarat & Ors.: AIR 2006 SC 1367, Kalyani Baskar (Mrs.) v. M. S. Sampoornam (Mrs.): (2007) 2 SCC 258, Vijay Kumar v. State of U.P. & Anr.: (2011) 8 SCC 136, and Sudevanand v. State through C.B.I.: (2012) 3 SCC 387)

9. In Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461, the Supreme Court held as under: (SCC, p. 473-74, para 17)

"17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

17.1. Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?

17.2. The exercise of the widest discretionary power under Section 311 Cr. PC. should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.

17.3. If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.

17.4. The exercise of power under Section 311 Cr.PC. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.

17.7. The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

17.8. The object of Section 311 Cr. PC. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

17.9. The Court arrives at 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.

17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

17.11. The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

17.14. The power under Section 311 Cr.PC. 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 care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."

10. In Swapan Kumar Chattarjee v CBI, (2019) 14 SCC 328, the Supreme Court observed as under: (SCC p. 331, para 11 & 12)

"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 wide 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.

12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision."

11. In view of the law laid down in the aforesaid authorities when the order impugned is examined, the Court finds that production of I.O. and the Incharge of Police Station in order to bring on record the circumstances under which the final report was submitted, does not appear to have any substance, inasmuch as the protest petition was allowed seven years ago and production of such witnesses at the stage of final hearing would hamper the trial that is at the verge of conclusion. The court below has also observed that final report has already been set aside/ cancelled by the court concerned long back, hence there is no good ground to summon the said police officials.

12. Considering the entire facts and circumstances of the case and law referred to above, I do not find any error in the view taken by the court below.