State v. Samudri Devi
Case Details
Court No. - 88 Case :- CRIMINAL REVISION No. - 3049 of 2022 Revisionist :- Parashnath Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Gyanendra Prakash Srivastava Counsel for Opposite Party :- G.A., Nagendra Pratap Singh Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the revisionist, learned counsel for opposite party no. 2 and learned A.G.A. for the State. 2. This criminal revision has been preferred against the order dated 28.04.2022, passed by the Chief Judicial Magistrate, Court no. 17, Deoria in criminal case No. 3454 of 2011, State v. Samudri Devi,
Legal Reasoning
arising out of Case Crime No. C-3 of 2006, police station Barhaj, district Deoria, whereby the application filed by opposite party no. 2 under Section 311 Cr.P.C. for his examination as witness has been allowed.
Legal Reasoning
3. It has been argued by learned counsel for the revisionist that impugned order is against facts and law and thus, liable to be set aside. It was stated that the revisionist is accused in the aforesaid case, which is pending since the year 2011. The said application under Section 311 Cr.P.C. has been moved with mala fide intention to delay the trial. Informant of the case has been passed away and at the time of alleged incident, opposite party no. 2, who is son of informant, was aged merely six years and thus, he is not aware of any fact regarding this incident. It was also submitted that opposite party no. 2 was not cited as a witness in the first information report or in the charge-sheet nor his statement was recorded during investigation. The court below has not considered the matter in correct perspective and committed error by allowing the application filed under Section 311 Cr.P.C. 4. Learned AGA and learned counsel for opposite party no. 2 have opposed the revision and argued that informant of the case has passed away without her evidence before the trial court. The opposite party no. 2 is son of the informant. The allegation, that at the time of incident, opposite party no. 2 was aged about six years, is thoroughly false and in fact the date of birth of opposite party no. 2 is 08.06.1984 and at the time of alleged incident, he was aged about 21 years. The court below has found that his examination was necessary and thus, his application filed under Section 311 Cr.P.C. was allowed for examination of opposite party no. 2 as a prosecution witness. It was further submitted that there is no illegality or 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 Mohanlal Shamji Soni v. Union of India & Anr., AIR 1991 SC 1346, the Hon'ble Apex Court examined the scope of Section 311 Cr.P.C., and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue. However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. The court has a duty to determine the truth, and to render a just decision. The same is also the object of Section 311 Cr.P.C., wherein the court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re- examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. 9. In Rajeswar Prasad Misra v. The State of West Bengal & Anr., AIR 1965 SC 1887, the Apex Court considered the ample power and jurisdiction vested in the court, with respect to taking additional evidence, and observed, that it may not be possible for the legislature to foresee all situations and possibilities and therefore, the court must examine the facts and circumstances of each case before it, and if it comes to the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered, and if such an action on its part is justified, then the court must exercise such power. 10. In the instant case, perusal of record shows that the informant of the case has passed away and her statement could not be recorded during trial. The opposite party no. 2, who is son of the informant, has moved an application under Section 311 Cr.P.C. for his examination as a prosecution witness. The trial court has considered the facts of the matter and observed that examination of opposite party no. 2 as a prosecution witness was essential for just decision of the case and thus, allowed the application of opposite party no. 2 filed under Section 311 Cr.P.C. As stated-above, it is well settled that under Section 311 Cr.P.C. the Court has power to summon a person as prosecution witness even if he was not cited as a witness in the first information report or in the charge-sheet. The necessary condition for exercising the jurisdiction under Section 311 Cr.P.C. is that summoning of such person as witness must be essential for the just decision of the case. In the instant case, the trial court has observed that summoning of opposite party no. 2 as a witness is essential for just decision of the case. In view of the above-stated facts and circumstances of the case, it cannot be said that the impugned order is suffering from any patent illegality or perversity or any error of jurisdiction. The revision lacks merit and thus, the same is liable to be dismissed. 11. Accordingly, the instant criminal revision is dismissed. Order Date :- 23.2.2023 Anand Digitally signed by :- ANAND VERMA High Court of Judicature at Allahabad