Om Prakash Prasad vs The State Of Jharkhand
2021 Latest Caselaw 3100 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Cr.M.P. No. 1094 of 2021

Om Prakash Prasad, aged about 36 years, son of Narayan Prasad,
resident of village Ranikudar, Ranikudar, P.O. Pandaripani, police station
Thethaitangar, District-Simdega           ...... Petitioner
                         Versus
1.The State of Jharkhand
2. Basanti Kumari, daughter of Dukharan Prasad, resident of village
Ranikudar, P.O. Pandaripani, Police Station Thethaitangar, District-Simdega
                                          ...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner            : Mr. A.K. Chaturvedy, Advocate
For the State                 : Mrs. Priya Shrestha, A.P.P.

03/Dated: 25/08/2021

Heard Mr. A.K. Chaturvedy, learned counsel for the petitioner

and Mrs. Priya Shrestha, learned counsel for the State.

2. This petition has been heard through Video Conferencing in

view of the guidelines of the High Court taking into account the situation

arising due to COVID-19 pandemic. None of the parties have complained

about any technical snag of audio-video and with their consent these

matters have been heard.

3. The present petition has been filed for quashing of order

dated 18.03.2021 passed by the learned Additional Sessions Judge,

Simdega in S.T. No. 198 of 2018 whereby petition filed under section 311

of the Cr.P.C. dated 12.03.2020 has been rejected by the concerned

Court.

4. Mr. A.K. Chaturvedy, learned counsel for the petitioner submits

that on three points victim and I.O. of the case are requried for further

cross-examination and for that a petition under section 311 Cr.P.C. dated

12.03.2020 was filed which has been rejected by the trial court. He

submits that the petition was under section 311 Cr.P.C. with prayer for

call for victim as well as I.O. for further cross-examination which was

required to be considered by the learned trial court. He submits that at

this stage, the Court is empowered to allow the petition under section

311 Cr.P.C. He relied upon judgment in the case of " Manju Devi Vs.

State of Rajasthan & Another" reported in (2019) 6 SCC 203

wherein para 10 the Hon'ble Supreme Court has held as under :-

"10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially 7 intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the court thereunder have been explained by this Court in several decisions. In Natasha Singh v. CBI, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 748-49, paras 8 &15) "8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

* * *

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 CrPC 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 8 issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC 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."

5. On the other hand, Mrs. Priya Shrestha, learned counsel for

the State submits that trial is under section 376 I.P.C. According to her,

regular bail application as well as anticipatory bail application of the

petitioner has been rejected and petitioner has also filed W.P.(Cr.) No.

200/2019.

6. On perusal of impugned order, it transpires that the

concerned Court has elaborated about three questions for cross-

examination by the petitioner. The petitioner has already cross examined

both the witnesses for which petition under section 311 Cr.P.C. has been

filed. It has been recorded in the impugned order that both the

witnesses have supported the case of prosecution. The trial court has

come to the conclusion that by way of this petition petitioner has tried to

demolish the evidence already on record.

7. Section 311 Cr.P.C. contains two parts. First part indicates the

word 'may' and the second part uses the word 'shall'. On perusal of

section 311 Cr.P.C., it transpires that once petition is filed and the

Magistrate comes to the conclusion that it is essential for calling any

witness, he is bound to call in view of second part of section 311 Cr.P.C.

Reference may be made to the case of "Shailendra Kumar V. State of

Bihar and Others" wherein second last paragraph of the said judgment

says that, bare reading of the aforesaid section reveals that it is of very

wide amplitude and if there is any negligence, latches or mistakes by not

examining material witnesses, the Courts function to render just decision

by examining such witnesses at any stage is not, in any way, impaired. In

the case of "Rajendra Prasad Vs. Narcotic Cell" reported in (1999)

6 SCC 110, it was observed that after all, function of the criminal court

is administration of criminal justice and not to count the errors committed

by the parties or to find out and declare who among the parties

performed better. There is no doubt that trial court is competent enough

to call any witness at any stage and for calling the witness if the court is

satisfied, there is no illegality.

8. Thus, Section 311 Cr.P.C. is very clear. It is well-settled that

power of the Court to summon material witness can be exercised only

with the object find out the truth or obtaining proper proof of facts which

may lead to a just and correct decision.

9. In the case in hand, the petitioner has already cross-

examined both the witnesses and three questions which have been

served further cross-examination are general so far section 376 I.P.C. is

concerned. Mr. A.K. Chaturvedy, learned counsel for the petitioner relied

upon judgment in the case of "Manju Devi" (supra). In that case the

doctor who conducted the first post-mortem has not been examined and

the Hon'ble Supreme Court came to the conclusion that the doctor who

conducted first post mortem who is necessary witness for examination

by both prosecution and defence. The said judgment was based on facts

of that case which is not helping the petitioner.

10. In the light of the discussions made here-in-above, no relief

can be extended to the petitioner. Accordingly, this criminal

miscellaneous petition is dismissed. I.A., if any stands disposed of.

(Sanjay Kumar Dwivedi, J.) Satyarthi/