Uttarakhand High Court
C482/1913/2023 on 17 October, 2023
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C482 1913 of 2023
Hon'ble Sharad Kumar Sharma, J.
Mr. B.S. Adhikari, Advocate, for the
applicant.
Mr. V.K. Gemini, Deputy A.G., for the State
of Uttarakhand.
In a proceeding of Special Sessions Trial No.
132 of 2022, State Vs. Yusuf, the applicant has
filed an application on 14th September, 2023, under
Section 311 of the Cr.P.C., for summoning PW3
and 5, to be cross examined. The said application
has been rejected by the impugned order on 14th
September, 2023, observing thereof, that so far as
PW3 is concerned, the opportunity to cross examine
PW3 was closed, as back as on 23rd July, 2022, and
the application under Section 311 of the Cr.P.C.
was preferred after more than one year, which has
been rejected by the Court, on the ground, that it
was nothing, but a measure adopted by the
applicant to delay the proceedings, and the
provision contained under Section 311 of the
Cr.P.C., cannot be permitted to be misused merely
on the ground, that the earlier counsel, who was
representing the applicant, had not been able to
appropriately cross examine PW3 and PW5 and
place relevant questions.
As far as the permission to be granted under
Section 311 of the Cr.P.C., for cross examination,
the matter was considered in one of the cases of the
Hon'ble apex Court in the matter of State Vs. J.
Seenivasagan as reported in (2021) 14 SCC 1, and
in para 12 of the said judgment, the Hon'ble Apex
Court has observed the necessity upto what extent
permission under Section 311 of the Cr.P.C. could
be granted. Para 12 of the said judgment 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 the 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."
If para 12 is taken into consideration, the
Court has taken a view that Section 311 of the
Cr.P.C. could be granted to summon the witnesses,
who are vital for the purposes of trial, and it cannot
be adopted as a matter of recourse to summon the
witness for their examination, if the opportunity has
already been closed earlier.
As far as PW5 in the instant case is
concerned, since she was only the transcribe of the
document, her cross examination would not be
required by invoking the provisions contained
under Section 311 of the Cr.P.C., because she
would not be a very vital witness to be cross
examined. Except for PW3, who is the mother of
the victim, though this Court is not very much
impressed by the argument extended by the learned
counsel for the applicant, that she could not be
examined because of the counsel's mistake. The
Counsel's mistake cannot be taken as a weapon to
be utilized for delaying the proceedings, otherwise
it will be an unending process, where any new
counsel, who is inducted by the parties, may take a
stand that the earlier counsel has professionally
derelicted in performance of his professional duties
for examination.
Though without accepting the ground taken
by the learned counsel for the applicant, but in
order to meet out the ends of justice, and
particularly in the context of PW3 for cross
examination, who is the prime witness, being the
mother of the victim, the C-482 Application would
partly stand disposed of, so far it relates to the
summoning of PW3 to be cross examined by the
Court.
However, as far as the summoning of PW5 is
concerned, the same would stand rejected.
The Summoning of PW3, is being permitted
by this Court subject to the following conditions :-
i. That the learned Sessions Court would
ensure to call upon PW3 on the next date
fixed, or be fixed, and the applicant would
ensure to cross examine her on the next
date fixed.
ii. If the applicant does not avail the said
opportunity, as granted by today's order,
there would be an automatic closure of
her opportunity to re-examine PW3 any
more.
iii. The said permission is being granted in
the wider interest to enable the applicant
to have an effective trail. But the said
permission since is now being availed by
the applicant after more than one year, he
is permitted to be examine PW3 on
payment of costs of Rs.20,000/- to be
deposited before the District Legal
Services Authority. The deposit to be
made, and upon the placement of proof of
deposit, the aforesaid permission would
stand granted to the applicant for
examining PW3 only.
Subject to the aforesaid, the C-482
Application stands disposed of.
(Sharad Kumar Sharma, J.)
Dated 17.10.2023
Shiv
