High Court
Case Details
Neutral Citation No. - 2024:AHC:150223 Court No. - 76 Case :- APPLICATION U/S 482 No. - 30923 of 2024 Applicant :- Gayatri Opposite Party :- State Of Up And 2 Others Counsel for Applicant :- Raghuvansh Chandra,Ram Jee Saxena Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material brought on record. 2. This application under Section - 482 Cr.P.C. has been preferred against order dated 19.05.2023, passed by Fast Track Court, Crime Against Women, District - Meerut in Criminal Case No. 2833 of
Legal Reasoning
2020 (State vs. Rajkumar and Others), arising out of Case Crime No. 76 of 2019, under Sections - 498-A, 323, 506 I.P.C. and Section - 3/4 Dowry Prohibition Act, Police Station - Mahila Thana, District - Meerut, whereby the application filed by the applicant/informant under Section - 311 for recalling of informant for her further statement has been rejected.
Legal Reasoning
3. Learned counsel for the applicant submitted that applicant is informant of the aforesaid case and that she has made her statement before the trial court under the pressure of accused persons. Later on, she has moved an application under Section - 311 Cr.P.C. for recording her further statement. That application was allowed by the trial court vide order dated 08.12.2022 and date 19.01.2023 was fixed for her statement but on that date she could not appear and thus, the opportunity of her statement was closed. After that the informant has moved another application under Section - 311 Cr.P.C. for her further statement, which has been rejected by the trial court vide impugned order dated 19.05.2023. Learned counsel submitted that impugned order is against law and thus liable to be set aside. In the interest of justice, the re-examination of informant / P.W.-1 was necessary. In support of this contention, learned counsel has placed reliance upon case of State Represented by the Deputy Superintendent of Police vs. Tr. N. Seenivasagan reported in AIR 2021 SC (Criminal) 1268 :: AIRONLINE 2021 SC 128. 4. Learned A.G.A. has opposed the application and submitted that there is no illegality of perversity in the impugned order. 5. I have considered the rival submissions and perused the record. 6. Fair trial is the main object of criminal procedure and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. The rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. 7. As far as question of jurisdiction under section 311 Cr.P.C. is concerned, it is clear that Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. 8. In case of State Represented by the Deputy Superintendent of Police (supra), in paragraph no.15, the Hon'ble Apex Court has held as under :- "The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case." (emphasis in original)" 9. From aforesaid position of law, it is apparent that power under Section - 311 Cr.P.C. has to be exercised judicially. An application under Section - 311 Cr.P.C. must not be allowed to fill up lacuna in the case of prosecution for defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused. 10. In the instant matter, it is apparent that earlier the application of applicant under Section - 311 Cr.P.C. was allowed but she did not appear before the trial court for her statement and thus, the opportunity of her further examination was closed vide order dated 19.01.2013. Said order dated 19.01.2023 has not been challenged. Thereafter, informant has moved second application under section - 311 Cr.P.C. for same prayer, which has been rejected by the impugned order dated 19.05.2023. In view of attending facts and circumstances, it cannot be said that re-examination or further examination of P.W.-1 is necessary for just decision of the case or to meet the ends of justice. It may also be stated that this application under Section - 482 Cr.P.C. has been filed after about one year of passing of the impugned order. Considering the entire facts, no case for invoking extraordinary powers under Section - 482 Cr.P.C. is made out. The application under Section 482 Cr.P.C. lacks merit and thus, liable to be dismissed. 11. The application under Section 482 Cr.P.C. is hereby dismissed. Order Date :- 13.9.2024 S Rawat