Allahabad High Court
Satya Prakash vs State Of U.P. Thru. Prin. Secy. Home Lko ... on 21 April, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:22323
Court No. - 12
Case :- CRIMINAL REVISION No. - 417 of 2025
Revisionist :- Satya Prakash
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko And 2 Others
Counsel for Revisionist :- Ashish Kumar
Counsel for Opposite Party :- G.A.,Anil Kumar Tiwari,Sanjeev Singh
Hon'ble Alok Mathur,J.
1. Heard Sri Ashish Kumar, learned counsel for the revisionist and the learned A.G.A. on behalf of the State while Sri Anil Kumar Tiwari, Advocate has put in appearance on behalf of opposite party No.3, which is taken on record.
2. By means of the present revision, the revisionist has assailed the order dated 1.4.2025 passed by Additional Sessions Judge, Room No.1, Sultanpur in Sessions Case No.470/2008 (State Vs. Virendra Kumar and others) arising out of case crime No.1014 of 2008 under Sections 412, 395, 397, 120B IPC relating to police station Kadipur, District Sultanpur wherein the application preferred by the revisionist for recall of prosecution witnesses under Section 311 Cr.P.C./348 of BNSS has been rejected.
3. It has been submitted that P.W. No.1 was examined on 21.2.2009 and cross examined from 4.12.2009 till 22.10.2012 for a period of three years. During the said period the petitioner was incarcerated in jail and accordingly could not duly inform his counsel, therefore, P.W. No.1 could not be summoned and, therefore, he moved application under Section 311 of Cr.P.C. by means of which he has sought to recall P.W.No.6, who was examined and cross examined from 25.9.2018 till 30.11.2024 and submits that the testimony of P.W. No.6 is further relevant and in case he is not given opportunity to cross examine him his valuable rights to defend himself would be lost and accordingly moved application under Section 311 Cr.P.C. which has been rejected by means of the impugned order dated 1.4.2025.
4. The trial court has duly considered the application of the revisionist for recall of witness and noticed that P.W. No.1 Ishwar Dev Singh has tendered his examination-in-chief on 21.2.2009 and subsequently was cross examined from 4.12.2009 to 22.10.2012 i.e. for a period of nearly three years. During the said period counsel for the revisionist and other accused had cross examined him. With regard to P.W. No.6 Nagendra Singh it has been noticed that his examination/cross examination was conducted from 25.9.2018 till 30.11.2024 and full opportunity was given to the accused to cross examine the said witness.
5. The trial court has also duly considered the Supreme Court judgment in the case of Zahira Habibullah Sheikh & Anr vs State of Gujarat & Ors, AIR (2004)4 SCC 158 wherein in paragraph 46 and 43 it has been stated that the provisions of Section 311 Cr.P.C. has to be utilized only in public interest and after due consideration of the facts in question. It is the discretion of the court to recall any witness in the interest of justice.
6. The trial court has further noticed that the said trial has been continuing for last 17 years and the prosecution evidence has been closed on 29.3.2025 and the trial is at the stage of Section 311 Cr.P.C. At this stage, the aforesaid application has been made only for prolonging and procrastinating the trial.
7. This Court has heard the rival contentions and perused the record.
8. A perusal of the application preferred by the revisionist under Section 311 Cr.P.C. indicates that the only reasoning given in the application was that the revisionist was incarcerated in jail and was not aware about the said case. When further question has been put to learned counsel for the revisionist with regard to the fact as to when the accused was taken into custody and when he was released on bail to determine as to whether he was present during the examinations of the said witnesses he has clearly stated that he was not aware of the said evidence. It has further been pointed out that on which dates fixed the accused was brought to the court and the statement of witnesses are recorded in presence of the accused and accordingly the statement of P.W. 1 and P.W. 6 in ordinary course would have been recorded in presence of the accused, no reply is forthcoming from the revisionist. The revisionist further submits that he does not want to press this aspect that opportunity was not given to the revisionist to cross examine P.W.1 and 6.
9. Further no satisfactory reply is forthcoming with regard to delay in moving the application under Section 311 Cr.P.C. with regard to P.W. 1 whose cross examination was also closed on 22.10.2012. Again in this regard the only reason forthcoming is that new counsel has been engaged by him who after perusal of the records has given his opinion to the accused that it would be necessary to cross examine P.W. No.1. Merely because new counsel is brought into the case that the accused should further examine the witnesses and further question deserves to be asked, cannot be accepted and not a valid ground for moving application under Section 311 Cr.P.C. In case the accused is duly represented by a counsel and he has been given adequate opportunity to cross examine the witnesses sufficient compliance of the prosecution procedure of the Cr.P.c. has been followed and would be deemed to have been done and in case the reasoning given in the present case that a fresh counsel has been appointed who gives his opinion that certain witnesses needs to be recalled for cross examination if the said application is allowed then in ordinary course of nature no trial can ever be concluded nor at any point of time can it be given fresh plea and evidence and move repeated applications under Section 311 Cr.P.C. to recall the witness. Accordingly, we do not find any infirmity in the impugned order passed by the trial court rejecting the application for recall of P.W. 1.
10. Hon'ble The Supreme Court has reiterated the law with regard to recall of witness under Section 311 Cr.P.C. time and again. in the case of State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402, the apex Court has observed as under:-
?27. It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power under Section 311 CrPC is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary ?for ensuring fair trial? is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined.
29. We may now sum up our reasons for disapproving the view of the High Court in the present case:
(i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross-examination. They were under no handicap;
(ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at the back of such counsel;
(iii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice;
(iv) The trial court as well as the High Court rejected the reasons for recall of the witnesses;
(v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed;
(vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial;
(vii) Mere change of counsel cannot be ground to recall the witnesses;
(viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled;
(ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall i.e. denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings;
(x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted.?
11. With regard to P.W. 6 even in the paragraph 5 of the application no reason has been stated as to why cross examination was not conducted on behalf of the accused. From perusal of the material availability on record it is clear that P.W. No.6 was cross examined till 30.11.2024. During the said period the accused was very well present in the court and duly represented but we do not find any reason as to why he failed to cross examine P.W.No.6 nor any reasoning has been stated in the application.
12. Accordingly, while considering the application under Section 311 Cr.P.C. the genuineness and bonafides of moving applications for recall and requests for cross examination has to be duly considered while allowing the application under Section 311 Cr.P.C. It is not as a matter of routine that the application is made for recalling the witness(es) and if the same has to be allowed. Valid and cogent reason has to be given by the accused to show that in the event of not doing so miscarriage of justice would occur only then it is the discretion of the court to recall any witness at any stage of the case. Accordingly, looking to the facts of the case we do not find any cogent reasoning has been given by the revisionist to recall the said P.W. 1 and 6.
13. Mere fact that there has been change in counsel cannot be a valid ground for recall of witness since such ground appear to be nothing more than a way to further delay the trial which has already been pending for last 17 years.
14. Accordingly, the revision being devoid of merits is dismissed.
(Alok Mathur, J.)
Order Date :- 21.4.2025
RKM.
