The Allahabad High Court has held that application under Section 311 Cr.P.C. can't be dismissed on the ground of delay in conclusion of the proceedings/ trial.
The single-judge bench of Justice Shekhar Kumar Yadav while adjudicating upon an application challenging the Trial Court order rejecting the same on the ground that the case had been pending for a substantial amount of time.
Learned Counsel for the applicant contended that examination of the witnesses named in the application filed by the applicant under Section 311 Cr.P.C. is very essential for the just decision of the case. It is further submitted that applicant has been falsely implicated in the present case, which is based on last seen testimony and the applicant has no criminal history to his credit.
Reliance was placed on Rajaram Prasad Yadav Vs. State of Bihar & ANR., 2013 Latest Caselaw 485 SC, SEENIVASAN vs. THE STATE BY INSPECTOR OF POLICE, 2019 Latest Caselaw 767 SC.
On the other hand learned counsel for the respondent no. 2 and learned AGA for the State pleading the legality and validity of the impugned order contended that application under Section 311 Cr.P.C. moved by the applicant at the fag end of the trial was nothing, but a deliberate attempt to delay the conclusion of the trial.
He further contended that applicant wanted to re-open the entire case, which in law is not permissible. Even otherwise, application of the applicant under Section 311 Cr.P.C. was an attempt to fill up a lacuna.
The Court after analysing its powers cited its judgement in THE STATE BY INSPECTOR OF POLICE wherein it was held that if it appeared to the Court that the evidence of a person who is sought to be recalled is essential to the just decision of a case, the Court could do so under Section 311 Cr.P.C.
It noted that the power to summon material witnesses under Section 311 Cr.P.C. which falls under Chapter XXIV containing the general provisions as to inquiries and trials has been held to confer a very wide power on the courts for summoning witnesses and accordingly the discretion conferred is to be exercised judiciously as wider the power the greater is the necessity for application of judicial mind.
"The power conferred has been held to be discretionary and is to enable the court to determine the truth after discovering all relevant facts and obtaining proper proof thereof to arrive at a just decision in the case. The power conferred under Section 311 Cr.P.C. is to be invoked by the court to meet the ends of justice, for strong and valid reasons and it is to be exercised with great caution and circumspection. The determinative factor in this regard should be whether the summoning or recalling of the witness is in fact, essential to the just decision of the case keeping in view that fair trial - which entails the interests of the accused, the victim and of the society - is the main object of the criminal procedure and the court is to ensure that such fairness is not hampered or threatened in any manner."
The Court mentioned Manju Devi Vs. State of Rajasthan, 2019 Latest Caselaw 400 SC, wherein the Apex Court had noted that an application under Section 311 Cr.P.C.could not be rejected on the sole ground that the case had been pending for an inordinate amount of time (ten years there). Rather, it noted that "the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness".
In the present matter, the Court stated that the additional witness, namely, Sanjay Rai, who claims himself to be an eye witness of the incident in his statement under Section 161 Cr.P.C., sought to be summoned by the applicant by way of additional evidence.
It remarked that the Trial Court observation that the applicant, by moving the application under Section 311 Cr.P.C. belatedly wants to derail the trial also to fill up a lacuna and to delay the trial proceedings are not tenable when the paramount consideration is "just decision of a case" and also keeping in view the decision of Apex Court in Manju Devi (supra) wherein it has specifically been held that delay in conclusion of the proceedings should not be the reason for rejection of an application under Section 311 Cr.P.C., the order impugned is liable to be quashed.
"Moreover, trial Court appears to have adopted a hyper technical view in rejecting the application, however, what it appears to have ignored is the purpose for which the salutary provisions of Section 311 Cr.P.C. has been incorporated. It has failed to adhere to the well known adage that every trial is a voyage in which quest for truth is the goal. The trial court can summon any witness even if evidence of both sides is closed. What is required to be demonstrated is, evidence of such witness is essential to the just decision of the case."
The application was thus allowed.
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