State of Uttarakhand Anr v. Mr. Alok Kumar, learned counsel for the

Judgment

1. The applicant, Vishesh @ Sonu, is facing trial in Sessions Trial No. 140 of 2015 (State of Uttarakhand vs. Vishesh @ Sonu and others), arising out of Case Crime No. 392 of 2014, registered at Police Station Manglaur, District Haridwar, under Sections 302 and 120-B of the Indian Penal Code.

2. The brief facts of the case are that on 27.11.2014, the father of the informant, Ravindra Kumar, was allegedly lured to the Aamkhedi Tube-Well by five named accused persons. There, he was made to consume liquor and was thereafter strangled to death.

3. Upon conclusion of investigation, a chargesheet was submitted against the applicant and other co-accused under Sections 302 and 120-B IPC. The learned Judicial Magistrate, Roorkee, took cognisance of the matter and committed the case to the Court of Sessions for trial.

4. During the course of the trial, the applicant filed an application under Section 311 CrPC seeking recall of P.W.-5 Ravindra Kumar for cross-examination, on the ground that he had not been previously cross- Criminal Misc. Application No. 1617 of 2018-----Vishesh @ Sonu Vs State of Uttarakhand & another 1 Ashish Naithani J. examined. This Court, in Criminal Miscellaneous Application No. 1406 of 2017, allowed the said application, and P.W.-5 was subsequently cross-examined.

5. Following that, the applicant moved another application dated

23.02.2018 under Section 311 CrPC before the learned Trial Court, seeking summoning of one Vipin, son of Sukhpal, stated to be a cousin of P.W.-5, as a prosecution witness. It was submitted that Vipin had conveyed information about the incident to the family, which formed

the basis of the FIR. Therefore, his testimony was essential for a fair and just adjudication of the case, being a crucial link in the chain of events.

6. The prosecution opposed the application on the ground that Vipin was neither cited as a prosecution witness in the chargesheet nor had his statement been recorded under Section 161 CrPC during the investigation. It was further submitted that summoning Vipin at this advanced stage would unduly prolong the trial and prejudice the prosecution.

7. The learned 1st Additional Sessions Judge, Roorkee, by order dated 11.05.2018, rejected the applicant’s application (68-Kha) under Section 311 CrPC, holding that summoning Vipin as a prosecution witness was not warranted in the present case.

9. Heard learned counsel of the parties and perused the records. Learned counsel for the applicant submitted that the learned trial court committed a grave error in rejecting the applicant’s application under Section 311 CrPC for summoning Vipin, son of Sukhpal, as a prosecution witness.

10. It was contended that during the cross-examination of P.W. 5, Ravindra Kumar, it emerged that it was Vipin who had first informed the family members about the incident. On the basis of such Criminal Misc. Application No. 1617 of 2018-----Vishesh @ Sonu Vs State of Uttarakhand & another 2 Ashish Naithani J. information, the police arrived at the spot and initiated proceedings, including the preparation of the inquest report.

11. Learned counsel submitted that the evidence of Vipin was, therefore, crucial and essential for a just decision of the case, as it would shed light on important aspects concerning the discovery and reporting of the incident.

12. It was argued that Section 311 CrPC confers wide powers on the Court to summon any witness at any stage of inquiry, trial, or other proceeding, if the evidence of such witness appears necessary for arriving at a just decision.

13. Learned counsel further submitted that rejection of application would cause serious prejudice to the applicant's right to a fair trial, particularly when no mala fide or dilatory motive could be attributed to the applicant in seeking the summoning of an important witness.

14. It was emphasised that the Court is duty-bound to ensure that all relevant and material evidence is brought on record, and mere technicalities or apprehensions of delay cannot be grounds to deny the summoning of a material witness whose testimony is germane to the facts in issue.

15. Learned State counsel opposed the application and supported the impugned order passed by the learned trial court. It was submitted that the application under Section 311 CrPC was filed by the applicant at a belated stage, only after the cross-examination of P.W.-5 was completed. It is an apparent attempt to fill lacunae in the defence, which is impermissible in law.

16. Learned State counsel argued that the applicant has failed to demonstrate how the testimony of Vipin, who admittedly was not an eyewitness, is essential for the just decision of the case. The assertion Criminal Misc. Application No. 1617 of 2018-----Vishesh @ Sonu Vs State of Uttarakhand & another 3 Ashish Naithani J. that Vipin had merely informed the family about the incident does not render him a material witness regarding the occurrence itself.

17. It was submitted that summoning a new person at this advanced stage, without prior investigation or corroborative material, would not only delay the conclusion of the trial but may also prejudice the rights of the prosecution and derail the proceedings already at an advanced stage.

18. It was further argued that the discretion exercised by the learned trial court under Section 311 CrPC is sound, reasoned, and based on a correct appreciation of facts and law. The power under Section 311 CrPC, although wide, is not meant to permit fishing inquiries or to allow parties to improve their case after noticing weaknesses during trial.

19. Learned State counsel, therefore, prayed that the application deserves to be dismissed with costs for being devoid of merit and for being an apparent attempt to stall the progress of the trial.

20. The primary grievance of the applicant is that the learned trial court erred in rejecting his prayer for summoning Vipin, son of Sukhpal, as a prosecution witness, despite the testimony of P.W.-5, Ravindra Kumar, indicating that it was Vipin who first informed the family members regarding the incident.

21. Before examining the merits of the challenge, it is necessary to reiterate the well-settled legal position in Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461, governing the exercise of powers under Section 311 CrPC. The provision is couched in the broadest possible terms. It empowers the court to summon any person as a witness at any stage of inquiry, trial, or other proceeding if it appears to the court that the evidence of such person is essential for a just decision of the case. Criminal Misc. Application No. 1617 of 2018-----Vishesh @ Sonu Vs State of Uttarakhand & another 4 Ashish Naithani J.

22. However, the Hon'ble Supreme Court has also emphasised in Rajaram Prasad Yadav v. State of Bihar & Anr., (2013) 14 SCC 461,that the power under Section 311 CrPC must be exercised with caution and circumspection, and not in a manner so as to permit a party to fill up lacunae in its case after noticing weaknesses exposed during the trial. The discretion is judicial, not arbitrary, and must be exercised on sound legal principles and not merely on the asking of a party.

23. In the present case, it is not disputed that Vipin was neither cited as a witness by the investigating agency in the police report nor was his statement recorded under Section 161 CrPC. The prosecution made no effort to examine Vipin during the initial stages of the trial. Even the defence, till after the cross-examination of P.W.-5, did not indicate any necessity for examining Vipin.

24. The applicant’s prayer for summoning Vipin emerged only after the cross-examination of P.W.-5 was conducted, wherein it transpired that Vipin had conveyed information about the incident to the informant. However, a careful reading of P.W.-5's statement shows that Vipin is not alleged to have witnessed the incident himself. He is merely stated to have communicated the information post-incident.

25. In the considered view of this Court, the information allegedly conveyed by Vipin, without his being a witness to the crime itself, does not render his testimony indispensable for the just decision of the case. His evidence would at best be hearsay regarding the commission of the offence and would not directly advance the adjudication on the charge of murder under Section 302 IPC.

26. Further, the timing of the application filed under Section 311 CrPC assumes significance. It was moved at an advanced stage of the trial when most of the prosecution evidence had already been led, and the matter was proceeding towards conclusion. Permitting Criminal Misc. Application No. 1617 of 2018-----Vishesh @ Sonu Vs State of Uttarakhand & another 5 Ashish Naithani J. summoning of a new witness at this stage, whose name does not appear in the array of witnesses cited by the prosecution and whose statement has not been tested during the investigation, would disrupt the continuity of the trial and unduly prejudice the prosecution.

27. In the case of T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633, it was established that courts must balance the need to ensure a fair trial against the need to prevent misuse of procedural provisions to delay and derail judicial proceedings.

28. The learned trial court, while rejecting the application, rightly recorded that the identity and role of the proposed witness had not been verified during the investigation and that the risk of misuse or proxy production of a person in the name of Vipin could not be ruled out. In the absence of any corroborative material, such apprehensions acquire significance and cannot be disregarded lightly.

29. The law laid down in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, mandates that the inherent powers under Section 482 CrPC should be invoked sparingly, in rarest of rare cases, to prevent miscarriage of justice or abuse of process. No such extraordinary situation is demonstrated by the applicant here.

30. In the facts of the present case, this Court finds that the discretion exercised by the learned trial court is neither arbitrary nor perverse. Thus, this Court finds no merit in the present application.

31. Accordingly, this application is dismissed. (Ashish Naithani J.) Dated:25.04.2025 NR Criminal Misc. Application No. 1617 of 2018-----Vishesh @ Sonu Vs State of Uttarakhand & another 6 Ashish Naithani J.