Uttarakhand High Court
"State vs Unknown on 10 October, 2023
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C482 No.2005 of 2023
Hon'ble Sharad Kumar Sharma, J.
Mr. Vaibhav Pandit, learned counsel for
the applicant.
Mr. S.C. Dumka, learned Assistant
Government Advocate for the State.
The present applicant is facing the
proceedings in Criminal Case No.827 of 2017,
"State Vs. Naresh Kumar", being the
proceedings, in which the applicant is being
tried for the offences under Sections 420,406,
504, 506 of the IPC, which stood instituted, as
a consequence of the culmination of the
investigation in the FIR, which was registered
on 22.08.2010. As a result thereto, the
proceedings of Criminal Case No.827 of 2017,
stood instituted on as back as in 2013.
The trial proceeded and the prosecution's
witnesses were closed and during that stage,
the Investigating Officer, as well as, Devendra
Singh, whom the applicant wants to be
summoned to be cross-examined were already
cross-examined by the earlier counsel
appearing on behalf of the applicant.
The applicant has filed an application
under Section 311 of the Cr.P.C. at a much
later stage contending therein, that, at the
stage, when the cross-examination was being
conducted for the Investigating Officer and
Devendra Singh, certain vital questions were
left to be placed. As such, there was a necessity
to consider the application preferred under
Section 311 of the Cr.P.C.
In the application, thus filed by the
applicant, if that itself, is taken into
consideration, in fact, it is absolutely vague and
contrary to the argument extended by the
learned counsel for the applicant, because the
application itself does not justify and support
the argument extended by the learned counsel
for the applicant, because it is not a fact that
the applicant was ever deprived of his
opportunity of cross-examination of the
Investigating Officer and Devendra Singh, but,
rather he has attempted to add a flavour by
filing an application under Section 311 of the
Cr.P.C. by introducing one Mr. Bhoop Singh
also to be summoned for further examination.
Though, despite of the fact, that he had never
appeared as a witnesses before the learned trial
Court.
Thus, the argument extended by the
learned counsel for the applicant that the
invocation of Section 311 of the Cr.P.C., as
prayed for by him in his application as
preferred by him, is absolutely not sustainable.
Because, as per the observations made, the
prosecution evidence has already been closed
and the finding, which has been recorded, it is
not that the applicant was deprived to cross-
examine the Investigating Officer and Devendra
Singh, rather he has availed the opportunity
and if the earlier counsel has failed to place the
relevant questions, after the completion of the
cross-examination of Investigating Officer and
Devendra Singh, that in itself cannot be a new
ground for a newly inducted counsel to file an
application under Section 311 of the Cr.P.C.
Because that would be absolutely a misuse of
the provisions contained under Section 311 of
the Cr.P.C. adding to delay a proceedings,
which was instituted as back as in 2013 and
that too, more importantly, when the 'charge'
has already been framed on 03.02.2014.
It is almost after 10 years, the application
under Section 311 has been filed. The trial
Court while rejecting the application under
Section 311 of the Cr.P.C. has observed that the
applicant was not deprived of cross-
examination of the Investigating Officer and
Devendra Singh, but rather the finding has
been recorded that ample of opportunity was
given and it was availed by the applicant to
cross-examine the Investigating Officer and
Devendra Singh.
Hence, there was no justification for filing
the application under Section 311 of the Cr.P.C.
to bring it within the ambit of Section 311 of the
Cr.P.C., because the powers, which could be
exercised under Section 311 of the Cr.P.C. by
the Courts to summon the witnesses for their
examination would be only when the evidences
of such persons, who are required to be re-
examined, is found to be material and essential
for the Court for just decision of a case.
Since in the instant case, there is no
complete deprivation, as such, the provisions
contained under Section 311 of the Cr.P.C.
cannot be utilized, as a tool to delay the
proceedings when there is no deprivation, as
such, caused to the applicant to deprive him of
his complete opportunity to cross-examine the
Investigating Officer and Devendra Singh.
The said principle has been laid down by
the Hon'ble Apex Court in paragraph no.12 of
its judgment as reported in 2021 SCC (14) 1,
State v. N. Seenivasagan. Paragraph no.12 is
extracted hereunder:-
12. In our view, having due regard to the
nature and ambit of Section 311 of the CrPC, it was
appropriate and proper that the applications filed by
the prosecution ought to have been allowed. Section
311 provides that any court may, at any stage of
any inquiry, trial or other proceedings under CrPC,
summon any person as a witness, or examine any
person in attendance, though not summoned as a
witness, or recall and re-examine any person
already examined and the Court shall summon and
examine or recall and re-examine any such person
"if his evidence appears to it to be essential to the
just decision of the case". The true test, therefore, is
whether it appears to the Court that the evidence of
such person who is sought to be recalled is essential
to the just decision of the case.
In paragraph no.12 of the said judgment,
it has been observed by the Hon'ble Apex Court
that Section 311 of the Cr.P.C. is not to be used
as a weapon to delay the proceedings, when the
witnesses has already been examined and
ample opportunity has already been availed by
the applicant.
Re-examination would be only in the
circumstances, when the evidence appears to
be essential for just decision. There is no
material as such on record to show that when
the prosecution's evidence was closed, any new
development has taken place, which could have
necessitated to summon the witnesses for
cross-examination.
In view of the aforesaid, I do not find any
merit in the C482 Application and the same is,
accordingly, dismissed.
(Sharad Kumar Sharma, J.)
10.10.2023
Sukhbant
