Jharkhand High Court
Mritunjay Kumar Poddar @ Mritunjay ... vs The State Of Jharkhand .... Opp. Party on 3 April, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 833 of 2024
Mritunjay Kumar Poddar @ Mritunjay Kumar @ Mritunjay Poddar,
aged about 42 years, son of Panch Deo Poddar, resident of Village &
P.O. -Kajrel, P.S. -Thakur Gagti, District -Godda.
.... Petitioner
Versus
The State of Jharkhand .... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Ashim Kr. Sahani, Advocate
For the State : Mrs. Lily Sahay, Addl. P.P.
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to
quash the order dated 13.02.2024 passed by the learned Additional
Sessions Judge 1st, Rajmahal in Sessions Trial No. 248 of 2013
whereby and where under the petition under Section 311 Cr.P.C.
filed by the informant of the case has been allowed by the learned
trial court.
3. It is submitted by the learned counsel for the petitioner that in the
said Sessions Trial No. 248 of 2013, charge was framed on 14.07.2014
and in between 12.07.2018 to 05.01.2022, all the witnesses have been
examined including Om Bihani Bibi and Allauddin
Ansari and they have neither been declared hostile by the
prosecution nor the prosecution cross-examined them. On
29.11.2022, the case of the prosecution was closed. On 09.12.2022, the
statement of the petitioner who is the accused person of the case was
recorded under Section 313 Cr.P.C. The evidence of the defence was
closed on 06.04.2023. The case was fixed for judgment on 12.01.2024.
On 08.01.2024, the informant filed an application under Section 311
Cr.P.C. with a prayer for examination of the three witnesses
including P.W.1 and P.W.3. On 13.02.2024, the learned Additional
Sessions Judge-I, Rajmahal allowed the said prayer subject to deposit
of Rs.2,000/- before 21.02.2024 to be deposited in the Nazarat and
directed the prosecution to examine all its witnesses within three
weeks.
4. It is submitted by the learned counsel for the petitioner that the
said order dated 13.02.2024 is a vague, cryptic, unreasoned and non-
speaking order and the said order even do not disclose the names of
the witnesses or the purpose of their examination and his witnesses
the belated the stage, when the trial is at the fag end being posted for
judgment. It is next submitted that the said order indicates, as if the
witnesses examined are fresh witnesses and there is no whisper that
two out of three witnesses sought to be examined by the informant
have already been examined in this case and after their cross-
examination, they have been discharged. Thus, it is submitted, that
the said order has been passed without application of mind by the
learned court below.
5. Relying upon the Judgment of Hon'ble Supreme Court of India, in
the case of State (NCT of Delhi) Vs. Shiv Kumar Yadav and
Another, reported in (2016) 2 SCC 402 para -27 of which reads 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." (Emphasis supplied)
It is submitted by the learned counsel for the petitioner that the
learned trial court has failed to consider the matter of delay, the
harassment for the witnesses to be recalled and the attending
circumstances and without forming any opinion that the evidence
sought to be adduced by the witnesses is essential for the just
decision of the case; even though the witnesses sought to be
examined were not present in the court at the time of passing of the
impugned order by the trial court. Hence, it is submitted that the
order dated 13.02.2024 passed by the learned Additional Sessions
Judge 1st, Rajmahal in Sessions Trial No. 248 of 2013 being not
sustainable in law be quashed and set aside.
6. The learned Addl. P.P. on the other hand vehemently opposes the
prayer for quashing the order dated 13.02.2024 passed by the learned
Additional Sessions Judge 1st, Rajmahal in Sessions Trial No. 248 of
2013 and submits that the learned Additional Sessions Judge -1st has
given a fair opportunity to the prosecution to examine its witnesses
which it could not be examined earlier. Hence, it is submitted that
this criminal miscellaneous petition being without any merit be
dismissed.
7. Having heard the submissions made at the Bar and after going
through the materials in the record, it is pertinent to mention here
that it is a settled principle of law that exercise of the power vested
under Section 311 Cr.P.C. upon a court is not a matter of course and
the discretion given to the court has to be exercised judiciously to
prevent the failure of justice and not arbitrarily.
8. It is a settled principle of law that the determinative factor for
exercising the discretionary power vested upon the court under
section 311 Cr.P.C. is whether the evidence sought to be adduced is
essential to the just decision of the case, as has been held by the
Hon'ble Supreme Court of India in the case of Vijay Kumar Vs.
State of Uttar Pradesh & Another, reported in (2011) 8 SCC 136.
In the said case, the Hon'ble Supreme Court of India has also
observed that the discretionary power conferred under Section 311
Cr.P.C. has to be exercised judicially for reasons stated by the court
and not arbitrary or capriciously.
9. Now coming to the facts of the case, it is evident from the copy of
the petition filed by the informant under section 311 of the Code of
Criminal Procedure as well as the order dated 13.02.2024 that though
the informant has sought to examine only three witnesses namely
Om Bihani Bibi who has already been examined as P.W.1 and
Allauddin Ansari who has already been examined as P.W.3 besides
one Imran Ansari but the trial court remained oblivious to the fact
that Om Bihani Bibi and Allauddin Ansari have already been
examined as P.W.1 and P.W.3 respectively and that the informant
has not made the prayer for recalling them nor the trial court
assigned any reason or expressed the purpose and intent for
recalling such witnesses. Further, the petition filed under Section 311
Cr.P.C. , as well as the impugned order is silent as to, which kind of
evidence could be adduced by the three witnesses. Similarly, in the
order dated 13.02.2024, the learned Additional Sessions Judge -1st,
Rajmahal has failed to take note of the fact that two out of the three
witnesses sought to be examined as already mentioned above were
already examined as prosecution witnesses and they were never
declared hostile nor they were cross-examined by the prosecution
and they have been discharged after their cross-examination nor any
express order has been passed for recalling them for their further
cross-examination nor the learned Additional Sessions Judge -1st has
assigned any reason, why their examination on further examination
on recall is the case may be, in case of each of the witnesses sought to
be examined in exercise of the power under section 311 of the Code
of Criminal Procedure; is necessary. Moreover, though there is no
prayer in the petition filed under Section 311 Cr.P.C. to examine any
witness other than the three witnesses whose names have been
already indicated above in the foregoing paragraphs of the
judgment, the learned Additional Sessions Judge -1st, Rajmahal has
crossed illegality by passing a general order directing the
prosecution to produce all witnesses and by not mentioning, as to
which witness and for what purpose witnesses are to be examined;
more so when such witnesses were not present in the court for their
examination.
10. Under such circumstances, this Court has no hesitation in holding
that the order dated 13.02.2024, passed by the learned Additional
Sessions Judge -1st, Rajmahal in Sessions Trial No. 248 of 2013 is not
sustainable in law. Accordingly, the same being cryptic, vague and
non-speaking order and being not in accordance with law is quashed
and set aside.
11. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 3rd April, 2024
AFR/Sonu-Gunjan/-
