Allahabad High Court
Shyam Sundar vs State Of U.P. And Another on 10 October, 2025
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:181399
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 32419 of 2025
Shyam Sundar
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Ajay Kumar Tiwari, Sangam Lal Kesharwani
Counsel for Opposite Party(s)
:
G.A.
Court No. - 77
HON'BLE SAURABH SRIVASTAVA, J.
1. Heard learned counsel for applicant and learned Additional Government Advocate for the State/opposite party no.1.
2. This application under Section 528 BNSS has been filed by applicant with a prayer to quash the impugned order dated 06.02.2025 passed by learned Additional Session Judge/Fast Track Court-I, Court No.23, Shahjahanpur on an application under Section 311 Cr.P.C. preferred at the behest of applicant in Session Trial No.459 of 2006 (State vs. Rampal and others), under Sections 395/397 I.P.C., Police Station Kotwali, District Shahjanpur, whereby the said application seeking recall of P.W.-1 and 3 for further cross-examination, has been rejected.
3. From the material evidence available on record, this Court finds that in this case, the examination-in-chief of P.W.-1 and 3 were recorded in the year 2007 and 2008, thereafter cross examination of the said witnesses had already been done from the side of the accused-applicant in the year 2013. After about 12 years of cross-examination, applicant moved application under Section 311 Cr.P.C. on dated 16.01.2025 which was rejected by learned court concerned vide impugned order dated 06.02.2025 by way of recording specific finding that a detail cross examination has already been made from the side of the defence. The application under section 311 Cr.P.C. has been moved only with the object to delay the trial.
4. Hon'ble the Apex Court in the case of Rajaram Prasad Yadav Vs. State of Bihar and another reported in 2013 (14) SCC 461 has considered the nature and scope of Section 311 Cr.P.C. with regard to recall and re-examination of witnesses, in detail and settled the principles, which have to be borne in mind while considering the application under Section 311 Cr.P.C. The relevant extract of the said judgement are reproduced hereinunder:-
"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.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive 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.P.C. 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.P.C. 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.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 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."
5. Further Hon'ble the Apex Court in the case of A.G. Vs. Shiv Kumar Yadav and another reported in 2015 (91) ACC 640 following the principles laid down by the Apex court in the case of Ram Prasad Yadav (supra) has also considered the issue that the presumption that an accused in custody will not delay the trial is not well founded and could not be a valid consideration for retrial or recall of witnesses. The fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. It is not possible to lay down precise situations when such power can be exercised. The Legislature in its wisdom has left the power undefined. Thus, the scope of power under Section 311 Cr.P.C. has to be considered from case to case. In the said case, Apex Court has also observed that power of judicial superintendence under Article 227 of the Constitution of India and under Section 482 Cr.P.C. has to be exercised springily when there is a patent error or gross injustice.
6. Considering the materials brought on record and keeping the Principles laid down by the Hon'ble Supreme Court as mentioned above, this Court is of the view that presumption, observations and findings recorded by the learned court concerned in rejecting the application under Section 311 Cr.P.C. of the applicant under the facts and circumstances of the case, are fully sustainable. The court concerned has committed no illegality in rejecting the application of the applicant. There appears no abuse of process of the Court and moreso, there is no evidence on record to satisfy this Court that trial would be seriously prejudiced if the said witnesses are not recalled for cross-examination.
7. In view of the above, the application under Section 528 BNSS preferred at the behest of applicant, having no merit and deserves to be dismissed.
8. Accordingly, the instant application is dismissed.
(Saurabh Srivastava,J.)
October 10, 2025
Vivek Kr.
