High Court · 2022

Heard learned counsel for revisionist, learned A.G.A. for the State, perused the record. This application has been filed with a prayer to set aside the order dated 06.04.2022 passed by learned Additional Sessions Judge/Special Judge Rape and POCSO Act, ( Court No.1), District Fatehpur in Sessions Trial No. 42 of 2016 arising out of Case Crime N. 0277 of 2015 under Sections 354D I.P.C. and Section 7/8 of POCSO Act and Section 3 (1)(xi) SC/ST Act, Police Station Khakhareru, District Fatehpur, whereby application under Section 311 Cr.P.C. filed by the revisionist to summon the P.W.2 has been rejected. Learned counsel for the revisionist submits that although the statements of the witnesses have been recorded but some relevant questions which were sought to be asked from the victim P.W.2 has been left and therefore, an application under Section 311 Cr.P.C. was moved on the ground, that the victim had filed Writ-C No. 21437 of 201, which was disposed of observing therein that the looking into the papers of the parties certifies that they are of marriage age and that victim has solemnised marriage on 13.06.2019 and was granted protection on the ground that the victim was minimum 18 years but as per her High School certificate her age has been shown as 16 years 11 months and 23 days and thus the relevant questions were required to be asked by the P.W.1 for which application under Section 311 Cr.P.C. was moved, which has been illegally rejected. He further submits that since the matter pertains to the POCSO Act, therefore in the interest of justice and to arrive at just decision of the case, one last opportunity may be granted to the revisionist to cross examine the P.W.2. Learned counsel for the revisionist has also placed the reliance of Hon'ble Supreme Court in the case of Natasa Singh Vs. Cbi (State) on 8.3.2019 wherein it has been stated that:- "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 Mir Mohd. Omar & Ors. v. State of West Bengal, AIR 1989 SC 1785, this Court examined an issue wherein, after the statement of the accused under Section 313 Cr.P.C. had been recorded, the prosecution had filed an application to further examine a witness and the High Court had allowed the same. This Court then held, that once the accused has been examined under Section 313 Cr.P.C., in the event that liberty is given to the prosecution to recall a witness, the same may amount to filling up a lacuna existing in the case of the prosecution and therefore, that such an order was uncalled for." Learned counsel for the revisionist has again placed the reliance of this Court in the case of Manju Devi Vs. State of Rajasthan, which is quoted below: On the other hand, Mr Senthil Jagadeesan has drawn the attention of the Court to the depositions of PW-1 and PW-11. Adverting also to the purported Board Minutes at Annexure P-2 (a photocopy of which has been filed at Annexure R-2 of the counter-affidavit), it has been submitted that the document, as a matter of fact, does not have the signatures of the members of the Board. Moreover, it has been urged that PW-1, who is the Chairman of TANGEDCO, during the course of his deposition, submitted that he had granted sanction for the prosecution of the respondent and the co-accused without reference to the Board, and that he was entitled to do so in accordance with the provisions of the PC Act. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity in so far as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the Court thereunder have been explained by this Court in several decisions 1. In Natasha Singh v. CBI (State) : (2013) 5 SCC 741, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under:- " 8. Section 311 CrPC 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 CrPC, 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 CrPC 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. Learned counsel has again drawn the attention of the section 311 Cr.P.C. which is as under, "that the object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is at any stage of any inquiry or trial or other proceeding under this Code. It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said wider the power, greater is the necessity of caution while exercise of judicious discretion.? In reply of the above contention, learned A.G.A. has placed reliance in the case of Sri Asha Vs. State of U.P. decided on 18.11.2020 in Crl. Misc. Application No. 13126 of 2020, which is quoted below: "17. The powers under Section 311 Cr.P.C. is the discretion or the obligation of the Court to summon or recall a witness, but this discretion of the Court cannot be forced to be used by the accused or the prosecution. While considering the present case it is clear that on behalf of the deceased sister an application under Section 311 Cr.P.C. had been moved in which no ground at all were brought forward as to why the witness needs to be summoned for examination whereas P.W.1 who is eye witness has been examined and cross examined. Applicant here is sister of deceased, who is not the informant nor the witness in the case and prosecution has examined P.W.1, who is real brother and eye witness of the deceased. There are 36 witnesses whose statements have been recorded by Investigating Officer. All are not required to be examined. Prosecution has to consider which witness has to be produced and to be examined. Out of 36 witness, 11 prosecution witnesses have been examined and prosecution evidence have been closed. The Hon'ble High Court while rejecting bail application of accused, directed the court below to conclude the trial expeditiously within a period of two months from the date of production of certified copy of this order. In application, no reason has been given as to why earlier, application for examination of witness has not been moved and what is relevancy of his examination. The prosecution was given much opportunity to produce evidence and prosecution examined all the witness to whom he wanted to be examined but when Hon'ble High Court passed the order for expedite the trial then to linger on the case, moved present application under Section 311 Cr.P.C. It is well settled law that under Section 311 Cr.P.C. cannot be invoked mere to fill up lacuna of the case but to fair and just decision of the case.

18. In the end, I do not find any illegality in the impugned order requiring any interference by this Court in exercise of inherent power under Section 482 Cr.P.C. and consequently, the prayer for quashing the impugned order dated 24.02.2020 passed by Additional Sessions Judge, Court No.3, Saharanpur in S.T. No.605 of 2015, Crime No.169 of 2014 filed under Sections 147, 148, 149, 302, 120-B I.P.C., Police Station Kotwali, District Saharanpur is refused." From the perusal of the application filed under section 311 Cr.P.C. as well as the order passed therein and submissions made by learned counsel for the both the parties and the case law cited by both the parties, as well as the provision itself permits that the Court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case, the impugned order dated 06.04.2022 is hereby quashed and matter is remitted back to the court concerned to pass an appropriate order after hearing both the parties within a period of three weeks from the date of production of a certified copy of the order before it. Accordingly this application is partly allowed. Order Date :- 18.5.2022 S.Ali Reason: Location: High Court of Judicature at Allahabad