Manish vs State Of Rajasthan
2021 Latest Caselaw 8962 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 3738/2020

Manish S/o Jagdish Prajapat, Aged About 25 Years, By Caste Prajapat, R/o Rebariyan Ka Guda, Police Station Pratap Nagar, Udaipur.

----Petitioner Versus

1. State Of Rajasthan, Through P.p.

2. Sahil Harijan S/o Shri Sunder Harijan, H.no. 19, Nadakhada Harijan Basti, Police Station Surajpole, District Udaipur.

3. Dalpat Singh S/o Ran Singh Dulawat, Khetpal Ka Gudha, Police Station, Khamnor, District Rajsamand Presently 40, Kumharon Ka Mohalla, Dewali, Police Station, Ambamata, Udaipur.

4. Naresh Harijan S/o Shri Shyamlal Harijan, 555, Nadakhada Harijan Basti, Police Station Surajpole, District Udaipur Presently 304, Ganesh Apartment, Samta Nagar, Bedla, Police Station, Sukher, Udaipur.

5. Karan Singh @ Lahar Singh S/o Late Shri Moti Singh, By Caste Rajput, Oda, Police Station, Kelwara, District Rajsamand Presently R/o Quarter No. 43-B, Railway Training School, Sukhadiya Circle, P.s. Ambatamata, Udaipur.

6. Bharat Nath S/o Shri Shanker Nath Yogi, 46, Jogiwada, P.s. Surajpole, Udaipur.

7. Kishan Khatik S/o Shri Lohar Khatik, Thur, P.s.

Ambamata, Udaipur.

8. Vijay Rawal S/o Shri Shanker Nath Yogi, 46, Jogiwada, P.s. Surajpole, Udaipur.

9. Subhash S/o Shri Madan Lal Lahore, 48, Jogiwada, P.s.

Surajpole, Udaipur.

10. Chanchal Jain @ Maharaj S/o Ramesh Chandra Jain, Santosh Nagar, Gariyawas, P.s. Hiranmagri, Udaipur.

----Respondents Connected With S.B. Criminal Misc(Pet.) No. 811/2019

(2 of 6) [CRLMP-3738/2020]

Neelam W/o Shri Praveen Paliwal, Aged About 28 Years, R/o 6- Kh-3, Ramsingh Ki Badi, Sector 11, District Udaipur.

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Sahil Harijan S/o Late Shri Sunder Harijan, R/o H.no. 19, Nadakhad Harijan Basti, P.s. Surajpole, District Udaipur.

3. Karan Singh @ Lahar Singh S/o Late Shri Moti Singh Rajput, R/o Oda P.s. Kelwara, Rajasamand, Presently R/o Quarter No. 43-B, Railway Training School, Rajsamand.

4. Naresh Valmiki S/o Sh. Shyam Lal Harijan, R/o H.no. 55, Nadakhada Harijan Basti , P.s. Surajpole , Udaipur

5. Vijay Rawal S/o Sh. Shankar Nath, R/o H.no. 46, Jogiwada , P.s. Surajpole , Distt. Udaipur

6. Subhash S/o Sh. Madan Lal Lohar, R/o H.no. 48, Jogiwada , P.s. Surajpole , Distt. Udaipur

7. Chanchal Jain @ Maharaj, R/o Gali No 7, Santosh Nagar Gariyawas, P.s. Hiranmagri , Distt. Udaipur

8. Dalpat Singh Dulawat S/o Sh. Ranjeet Singh Rajput, R/o Khetpal Ka Gudas (Godas) P.s. Khamnor Rajassam , Distt.

9. Bharat Nath S/o Sh. Shankar Nath, R/o H.no. 46, Jogiwada , P.s. Surajpole , Distt. Udaipur

10. Kishan Khatik S/o Sh. Logar Khatik, R/o Thor , P.s.

Ambamata , Udaipur

----Respondents

For Petitioner(s) : Mr. Nishant Bora/Mr. Sanjay Mathur For Respondent(s) : Mr. Mukhtiyar Khan, P.P.

Mr. Dhirender Singh

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

07/04/2021

The present criminal misc. Petitions under Section 482 of

Code of Criminal Procedure has been filed by the Petitioners

Manish and Smt. Neelam respectively against the order dated

(3 of 6) [CRLMP-3738/2020]

03.01.2019 passed by learned Additional District Judge No.4,

Udaipur in Criminal Case No. 42/2017 by which the application

filed by the accused under Section 311 Cr.P.C. was allowed and

summoned witnesses PW/2 Manoj Paliwal and PW/3 Manish

Prajapat for re-examination.

Counsel for the petitioner submits that both the witnesses

have already been examined and accused got ample opportunity

to cross-examine the above witnesses and now at this belated

stage, the accused filed application under Section 311 Cr.P.C. The

accused has filed the application only to delay the proceedings but

the trial court erroneously allowed the application filed by the

accused without assigning any cogent reasons.

Learned Public Prosecutor and learned counsel for the

respondent opposed the prayer made by the petitioner.

I have perused the impugned order and heard rival

contention of the parties.

It is not disputed that evidence of witnesses PW/2 Manoj

Paliwal and PW/3 Manish Prajapat has been recorded and cross-

examination has also been done by the accused and later on an

application under Section 311 Cr.P.C. was filed by the accused for

summoning the witnesses again. In the application, the accused

respondents has nowhere mentioned as to how the recalling of

witnesses PW/2 Manoj Paliwal and PW/3 Manish Prajapat is

essential for just decision of the case.

Hon'ble Supreme Court in the case of Rajaram Prasad Yadav

vs. State of Bihar & Anr. reported in AIR 2013 SC 3081 has laid

down following principles while dealing with application under

Section 311 Cr.P.C:-

(4 of 6) [CRLMP-3738/2020]

"23. 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:

a) 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?

b) 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.

c) 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.

d) 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.

e) 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.

f) The wide discretionary power should be exercised judiciously and not arbitrarily.

g) 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.

(5 of 6) [CRLMP-3738/2020]

h) 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.

i) 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.

j) 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.

k) 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.

l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

m) 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.

n) 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

(6 of 6) [CRLMP-3738/2020]

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."

In the circumstances of the case, in view of the observations

made by Hon'ble Supreme Court at points No. (e), (f), (i), (j) and

(k), it is clear that the trial court has committed an error in

exercising the jurisdiction under Section 311 Cr.P.C and

summoning the witnesses as their re-examination is not essential

for just decision of the case. Hence, these criminal misc. petitions

are allowed. The impugned order dated 03.01.2019 passed by

learned Additional District Judge No.4, Udaipur in Criminal Case

No. 42/2017 is hereby quashed and set aside. The trial court is

directed to expedite the trial.

(MANOJ KUMAR GARG),J

131-BJSH/-

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