Allahabad High Court
Hari Shankar Pandey vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 25 November, 2024
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:77960
Court No. - 11
Case :- APPLICATION U/S 482 No. - 10683 of 2024
Applicant :- Hari Shankar Pandey
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Other
Counsel for Applicant :- Akshay Kumar Singh,Mohit Nigam,Palak Jawa
Counsel for Opposite Party :- G.A.,Anurag Kumar Singh
Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Akshay Kumar Singh, learned counsel for the applicant and Sri Anurag Kumar Singh, learned counsel for the C.B.I. However, Sri Bhanu Pratap Singh, learned Additional Government Advocate has put in appearance on behalf of the State.
2. In view of the proposed order, the notice to opposite party No.3 is hereby dispensed with.
3. By means of this application filed under Section 311 Cr.P.C. (Section 348 B.N.S.S.), the applicant has prayed for the following reliefs:-
"(i) to issue an order or direction to quash the impugned order dated 24.10.2024 passed by the learned Additional District & Sessions Judge/ Special Judge, C.B.I., Court No.4, Lucknow in Session Trial No.56 of 2015 in respect to the First Information Report No.RC-0062014A0033 (CBI vs. Hari Shankar Pandey @ Hathi Pandey) under Sections 7 and 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988 at P.S.-C.B.I./A.C.B., District-Lucknow.
(ii) to issue an order or direction to recall the witness i.e. PW-4, Aslam Parvez (informant) which was examined before the learned Additional District and Sessions Judge/ Special Judge, C.B.I., Court No.4, Lucknow in Session Trial No.56 of 2015 for cross-examination and for conducting the trial impartially."
4. Learned counsel for the applicant has drawn attention of this Court towards an application filed under Section 311 Cr.P.C. (Section 348 B.N.S.S.) for recalling the prosecution witness PW-4.
5. By means of the aforesaid application citing the reasons in para-6 that request has been made from the trial court to recall PW-4, the complainant, for re-examination. The learned trial court rejected the aforesaid application vide order dated 24.10.2024 observing that such reasons have already been examined thoroughly and eight years period have passed when he was examined by the learned trial court. The learned trial court has observed that the reasons so indicated in such application for re-examination of PW-4 are not sufficient, therefore, at this stage when the required exercise under Section 313 Cr.P.C. is to be carried out such witness may not be recalled. Notably, the required exercise under Section 313 Cr.P.C. has already been carried out on 24.10.2024.
6. Sri Anurag Kumar Singh, learned counsel for the C.B.I. has stated that while rejecting the application of the present applicant, the learned trial court has indicated the reasons thoroughly and the trial in question is of 2015, therefore, it has to be concluded at the earliest in terms of the directions being issued by the Hon'ble Supreme Court relating to the old trials.
7. Sri Akshay Kumar Singh has drawn attention of this Court towards various judgments of Hon'ble Supreme Court, which are as under:-
(i) Zahira Habibulla H. Sheikh vs. State of Gujrat reported in (2006) 3 SCC 374.
(ii) Rajendra Prasad vs. Narcotic Cell reported in (1999) 6 SCC 110.
(iii) State of Haryana vs. Ram Mehar reported in (2016) 8 SCC 762.
(iv) Manju Devi vs. State of Rajasthan reported in (2019) 6 SCC 203.
(v) Rambhau vs. State of Maharashtra reported in (2001) 4 SCC 759.
(vi) Mohanlal Shamji Soni vs. Union of India reported in (1991) 1 SCC 271.
(vii) Matajog Dobey vs. H.C. Bhari reported in AIR 1956 SC 44.
(viii) T. Nagappa vs. Y.R. Muralidhar reported in (2008) 5 SCC 633.
(ix) U.T. of Dadra & Nagar Haveli vs. Fatehsinh Mohansinh Chauhan reported in (2006) 7 SCC 529.
(x) Sudevanand vs. State through CBI reported in (2012) 3 SCC 387.
to submit that it has been the consistent view of the Supreme Court that the powers of the Court under Section 311 Cr.P.C. to recall any witness is aimed at ensuring a fair trial, and such power should be used liberally.
8. Replying the aforesaid contention of learned counsel for the applicant, Sri Anurag Kumar Singh, learned counsel for the C.B.I. has also stated that though the power under Section 311 Cr.P.C. to recall the witness should be exercised ensuring the fair trial but if the purpose of filing application under Section 311 Cr.P.C. is to delay the trial, the same should be rejected.
9. Sri Anurag Kumar Singh has stated that in the case so cited by the learned counsel for the applicant the Hon'ble Supreme Court has also observed that allowing the application under Section 311 Cr.P.C. for recalling the witnesses should not be a mechanical exercise but it is really aimed to ensure the fair trial.
10. In the present case, the aforesaid application filed under Section 311 Cr.P.C., it has not been indicated as to why the aforesaid witness is being recalled after eight years and no such pleading has been given in the present application.
11. The points which have been indicated in para-6 of the aforesaid application have already been taken into account at the time of examination and cross-examination of such witness, even if anything remains, the applicant is having opportunity to produce his defence witnesses so as to substantiate and corroborate his submissions so made in the aforesaid application. Any relevant defence witness may be produced by the applicant inasmuch as after examination of the defence witness the trial court may fix the date for final arguments and at the time of final arguments all those materials would be placed before the court concerned and at that stage if the trial court finds that so as to arrive on logical conclusion any exercise should be undertaken, that order may always be passed by the learned trial court. But at this stage, on the points so raised in the application under Section 311 Cr.P.C., that application should not be allowed. Therefore, the learned trial court has rightly rejected such application.
12. Having heard learned counsel for the parties and having perused the material available on record, I am also of the considered opinion that if any application under Section 311 Cr.P.C. is filed to recall any particular witness ensuring a fair trial and the reasons have been indicated in such application to suggest that if a particular witness is not recalled the defence may suffer irreparable loss, such application should be considered liberally, but if such application is filed after a substantial delay, i.e. eight years in the present case, and specific reasons are not indicated in such application as to why that application has been filed after the period of eight years and such witness has already been examined thoroughly by the learned trial court, then such application should not be allowed in a mechanical manner.
13. Accordingly, I do not find any infirmity or illegality in the order dated 24.10.2024 passed by the learned Additional District & Sessions Judge/ Special Judge, C.B.I., Court No.4, Lucknow in Session Trial No.56 of 2015 in respect to the First Information Report No.RC-0062014A0033 (CBI vs. Hari Shankar Pandey @ Hathi Pandey) under Sections 7 and 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988 at P.S.-C.B.I./A.C.B., District-Lucknow.
14. The application is, therefore, rejected.
[Rajesh Singh Chauhan,J.]
Order Date :- 25.11.2024
Suresh/
