Jharkhand High Court
Vijay Kumar Mandal @ Bijay Kumar ... vs The State Of Jharkhand on 25 October, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1107 of 2021
Vijay Kumar Mandal @ Bijay Kumar Mandal, aged about 52 years,
S/o Nagendranath Mandal, resident of Village-Maheshmara, P.S.-
Rikhiya, P.O.-Rikhiya, District-Deoghar, Jharkhand.
..... ... Petitioner
Versus
The State of Jharkhand ..... ... Opposite Party
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Niranjan Kumar, Advocate
For the State : Mr. Abhishek Singh, A.C. to G.A.-V.
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05/ 25.10.2021 Heard Mr. Niranjan Kumar, learned counsel appearing for the
petitioner and Mr. Abhishek Singh, learned A.C. to G.A.-V for the State.
2. This criminal miscellaneous petition has been filed for
quashing of the order dated 16.03.2021, passed by the learned Additional
Sessions Judge-I, Deoghar, in connection with Rikhiya P.S. Case No. 72 of
2018 arising out of S.T. No. 117 of 2019.
3. The prosecution case was instituted stating therein that on
10.07.2018 at about 8.00 hrs, the informant and his brother Ramesh
Kumar Hari were returning to their house via Ranga More by a Tempo
which has been driven by Sudeep Yadav, one Munna Singh, Rajendra
Yadav were also with him. The petitioner fired upon the brother of
Ramesh Hari and 8 to 10 unknown culprits were also present with the
petitioner. In course of firing, Munna Singh also got fire injury and the
informant tried to catch the culprit but they managed to flee away. The
petitioner was armed with pistol which has been seen by the informant.
There is a land dispute between the petitioner and informant since long.
On the basis of the written report, FIR has been lodged against the
petitioner and other co-accused persons.
4. Mr. Niranjan Kumar, learned counsel appearing for the
petitioner submits that this case arises out of a land dispute between the
parties. Learned counsel further submits that after lapse of 2 years 9
months 26 days, mother of the informant filed a case being R.M.R. Case
No. 03 of 2011 challenging the order dated 02.06.2008 in respect of
Mutation Order in the Court of Deputy Commissioner, Deoghar. He
submits that all the witnesses have been examined except I.O., thereafter
petition has been filed on behalf of the prosecution on 16.03.2021 for
examining the non-chargesheet witnesses, which are 10 in numbers, as
additional witnesses on behalf of the prosecution and the same was
allowed by the concerned Court in view of Section 311 of the Cr.P.C.
Learned counsel submits that the impugned order is bad in law and the
same is liable to be quashed.
5. Mr. Abhishek Singh, learned A.C. to G.A.-V appearing for the
State submits that the impugned order is well within Section 311 of the
Cr.P.C. and there is no illegality in the said impugned order.
6. On perusal of the impugned order, it transpires that the
learned Court, without assigning any reason, as to why at the fag end of
the trial, ten witnesses have been allowed to be examined. There is
provision in Section 311 Cr.P.C. to examine / re-examine the witnesses,
but at the fag end of the trial, 10 witnesses have been allowed to be
examined, there must be a cogent reason, which is not disclosed in the
impugned order.
7. It is well settled proposition of law by the Hon'ble Supreme
Court in the Case of Rajaram Prasad Yadav Versus State of Bihar & Anr.,
reported in (2013) 14 SCC 461, wherein in para-17 the Hon'ble Court has
laid down the following principles:-
"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 safe guard, 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."
8. The Trial Court was required to follow the principle of
Section 311 of the Cr.P.C., which has not been done in the case in hand, in
view of the judgment of the Hon'ble Supreme Court in the case of
Rajaram Prasad Yadav (Supra).
9. Accordingly, the impugned order dated 16.03.2021, passed by
the learned Additional Sessions Judge-I, Deoghar, in connection with
Rikhiya P.S. Case No. 72 of 2018 arising out of S.T. No. 117 of 2019, is
hereby, quashed. The matter is remitted back to the Court of learned
Additional Sessions Judge-I, Deoghar to re-examine the matter and pass
the appropriate order in accordance with law.
10. With the aforesaid observation and direction, this criminal
miscellaneous petition stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
