High Court
Case Details
Neutral Citation No. - 2024:AHC:183785 Court No. - 52 Case :- APPLICATION U/S 482 No. - 35972 of 2024 Applicant :- Deepak Opposite Party :- State of U.P. and Another Counsel for Applicant :- Tripurari Pal Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
Legal Reasoning
17. The principles related to the exercise of the power under Section 311 Cr.P.C. have been well settled by this Court in Vijay Kumar vs. State of Uttar Pradesh and Another, reported in 2011 (8) SCC 136:- "17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."
Arguments
1. Heard Sri Tripurari Pal, learned counsel for the applicant and learned A.G.A. for the State. 2. This application under Section 482 Cr.P.C. has been filed to set aside the impugned order dated 05.10.2024 passed by the learned court of Additional Session Judge (F.T.C.), Court No.- 1, Aligarh in S.T. No.- 1275 of 2021 (State Vs. Deepak) related to Case Crime No.- 266 of 2020, under Sections 498-A, 304-B I.P.C. & 3/4 D.P. Act, P.S.- Gandhipark, District- Aligarh, by which the learned trial court has rejected the application u/s 311 Cr.P.C. of the applicant and refused to summon the P.W.1 namely Lekhraj, P.W.2 namely Tekchandra and P.W.3 namely Amarpal Singh for cross-examination. 3. Learned counsel for the applicant submits that the application was moved before the concerned court requesting for summoning PW-1, PW-2 and PW-3 for the re- examination on certain questions which could not be put to the aforesaid witnesses at the time of their examination. The aforesaid application has been rejected in the mechanical manner without application of judicial mind vide order dated 05.10.2024. Therefore, the same may be set aside. 4. On the other hand learned A.G.A. submits that seven prosecution witnesses had already been examined and the application under Section 311 of Cr.P.C. has been moved after delay without giving any plausible explanation for the same. The case is pending at the stage of evidence. On 17.01.2024 the statement of PW-7 O.S.D. (MDA), Meerut Ranjeet Singh has been recorded. The chief of PW-1 Lekhraj Singh has been recorded on 06.12.2021 and cross has been completed on 15.12.2021. Statement of PW-2 Tekchandra has been recorded on 06.01.2022 and that of PW-3 Amarpal Singh has been recorded on 06.04.2024. The prosecution was given ample opportunity to cross-examine the aforesaid witnesses and on every point they have been examined. Learned A.G.A. further submits that the object and purpose of Section 311 of Cr.P.C. is not to fill up any lacuna while examining the witnesses but in case at any stage of trial, the Court itself on an application moved by prosecution can recall and summon any person as a witness or recall and re- examine any person who has already been examined if evidence appears to be essential for the just decision of the case. 5. I have considered the submissions made by the learned counsel for the parties and gone through the records of the present application. 6. Before fathoming correctness of the submissions made by the learned counsel for the parties, it will be worthwhile to refer to Section 311 Cr.P.C., which reads as under:- "311. Power to summon material witness, or examine person present:-. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, 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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case." 7. Assiduous scrutiny of aforesaid provision clearly suggests that court enjoys vast power to summon any person as a witness or recall and re-examine a witness, provided, same is essentially required for just decision of the case. Moreover, such exercise of power can be at any stage of inquiry, trial or proceedings under the Code, meaning thereby, applicant can file an application at any time before conclusion of trial. Very object of Section 311 is to bring on record evidence not only from the point of view of accused and prosecution, but also from the point of view of the orderly society. 8. 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 of Cr.P.C. 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 Cr.P.C. 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. 9. 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 interest 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. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that 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. 10. Close scrutiny of aforesaid provision of law further suggests that Section 311 has two parts; first part reserves a right to the parties to move an appropriate application for re-examination of a witness at any stage; but definitely the second part is mandatory that casts a duty upon court to re-examine or recall or summon a witness at any stage if his/her evidence appears to be essential for just decision of case because, definitely the underlying object of aforesaid provision of law is to ensure that there is no failure of justice on account of mistake on the part of either of parties in bringing valuable piece of evidence or leaving an ambiguity in the statements of witnesses examined from either side. 11. In this backdrop, it would be useful to make a reference to certain decisions rendered by the Supreme Court on the interpretation of Section 311 of the Code, wherein the Apex Court highlighted the basic principles which are to be borne in mind while dealing with an application under Section 311of the Code. 12. In Natasa Singh v. C. B. I., reported in (2013) 5 SCC 741, the Apex Court, after referring the various decisions of the Supreme Court, has observed that the power conferred under Section 311 Cr.P.C. must therefore, be invoked by the court only in order to meet the ends of justice and such power should be exercised with great caution and circumspection. 13. The scope of Section 311 Cr.P.C. has been dealt in the case of Raja Ram Prasad Yadav vs. State of Bihar and another, reported in (2013)14 SCC 461, wherein the Apex Court has held that power under Section 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case. It may be relevant to take note of the following paras of the judgment:- "14. A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution." 15. In this context, I also wish to make a reference to the judgment of the Apex Court in Mannan SK and others vs. State of West Bengal and another reported in AIR 2014 SC 2950, wherein the the Apex Court Court has held as under:- "10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word 'shall'. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The court must form an opinion that for the just decision of the case recall or reexamination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine." 16. Further in the case of V.N. Patil vs. K. Niranjan Kumar and Ors. reported in (2021) 3 SCC 661 wherein the Apex Court has held that the aim of every Court is to discover the truth. Section 311 Cr.P.C. is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 Cr.P.C. has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice.