High Court
Case Details
Neutral Citation No. - 2023:AHC:175133 Court No. - 91 Case :- APPLICATION U/S 482 No. - 24189 of 2023 Applicant :- Jitendra And Another Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Nagendra Bahadur Singh,Kumar Ashutosh Srivastava Counsel for Opposite Party :- G.A. Hon'ble Gajendra Kumar,J. 1. Heard, learned counsel for the applicants and learned Additional Government Advocate appearing for the State-respondents. 2. The present application under section 482 Cr.P.C. has been filed seeking to quash the order dated 17.06.2023 passed by the Special Judge (POCSO Act), Court No.2, Moradabad U/S 311 Cr.P.C. in
Legal Reasoning
S.T. No. 44 of 2020 (State vs. Jitendra and others) arising out of Case Crime No. 474 of 2019, under Section 376-D, 506 IPC and 5/6 POCSO Act, P.S. Thakurdwara, District Moradabad, whereby the application under Section 311 Cr.P.C. moved by the applicant has been rejected. 3. It is submitted by learned counsel for the applicants that initially an FIR was lodged by the opposite party no.4 against two named accused person Jitendra, Vijay Pal and one unknown person in case crime no.474 of 2019, under sections 376-D, 506 IPC and 5/6 POCSO Act, P.S. Thakurdwara, District Moradabad. After investigation charge sheet was filed and trial was commenced in S.T. No.44 of 2020. The statement of prosecutrix was recorded in which she named Bablu as a third accused person. An application was moved under section 319 Cr.P.C. and on the basis of evidence / material, the accused Bablu was summoned for the offence under section 376-D, 506 IPC and 5/6 POCSO Act. As the accused Bablu absconded and process against him was issued under section 82 Cr.P.C. and his file was separated from S.T. No.44 of 2020 (State vs. Jitendra and others). Statement of the prosecutrix was recorded in which she exonerated the accused Bablu and was declared hostile as the version of the prosecutrix as regard to the involvement and complicity was confusing, application under section 311 Cr.P.C. in S.T. No.44 of 2020 was filed on behalf of applicant with the prayer that to clear the confusion, her cross-examination under section 311 Cr.P.C. is necessary. The said application was heard and decided vide order dated 17.6.2023 after discussing and analysing the facts of the case with the observation that earlier the application under section 311 Cr.P.C. was moved on 30.05.2023 which was heard and was also dismissed on 31.5.2023. Again application dated 14.6.2023 was moved with regard to the statement made by the prosecutrix in S.T. No.986 of 2022 as to the contradiction and the same was found unjustified and it was also observed that there is a direction of Hon'ble High Court dated 30.08.2022 for disposal of the case within one year. It was also observed that the application has been moved only to cause delay in the progress of the case as the case is at the stage of arguments.
Legal Reasoning
4. The main contention of the learned counsel for the applicant is that the application has been decided in a cursory manner without considering the facts and circumstances of the case which is necessary for the just decision of the case and to bring about the truth involved in the case. 5. Learned A.G.A. opposed the prayer made for and contended that applicants have moved application with the purpose of delaying the disposal of the case. It has been rightly dismissed by the trial Court. 6. Section 311 in The Code Of Criminal Procedure, 1973 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 re- examine any such person if his evidence appears to it to be essential to the just decision of the case." 7. In view of the submissions and contention made by learned counsel for the parties and from the record, it is apparent that initially FIR was lodged against two known person and one unknown person. After completion of the investigation, I.O. submitted charge sheet only against named persons and trial commenced. The prosecutrix was examined as P.W.1 in S.T. No.44 of 2020 (State vs. Jitendra and others). The prosecutrix named Bablu as the accused person which is cited as unknown in the FIR and resultantly he was summoned under section 319 Cr.P.C. for the offence under section 376-D, 506 IPC and 5/6 POCSO Act for non appearance of the accused, his case was separated and was numbered as S.T. No.986/2022. On his appearance in the court, the prosecutrix was examined as P.W.1 in which she has exonerated the Bablu as not involved in the commission of the crime on her. 8. Keeping in view of the statement made by the prosecutrix in S.T. No.986 of 2022 an application was moved by the applicant in S.T. No.44 of 2020 with the prayer that the prosecutrix has made two versions of the same case and incident regarding the involvement of the accused persons which is a confusing situation which needs to be cleared as well as for the just decision of the case, she needs to be examined under section 311 Cr.P.C. The application has been heard and decided by the trial court by discussing the facts and circumstances of the case as well as the statement and contentions made by the counsel for the parties. 9. The Courts have a duty to examine the attenuating circumstances, and the reasons set forth in the application for recalling any witness. In case, there is a bona fide mistake, or any fact has been unintentionally left out from the testimony, or discovery of new fact which was not earlier in the knowledge of the witness, are some of the grounds available for which the power under section 311 Cr.P.C. may be exercised for the recall of a witness. But simultaneously, on the other hand, it has to be mentioned that the application has to be moved expeditiously, so that the trial proceedings do not get procrastinated to the disadvantage of the accused, who undoubtedly has a right of speedy trial. Therefore, no ground for interference is made out with the impugned rejection order. 10. In light of the above, I do not find any infirmity with the order of the trial court, amounting to abuse of process of court and even otherwise considering the facts of the case there is no ground to interfere with the impugned order. 11. The application lacks merit and accordingly rejected. 12. The trial Court is directed to conclude the trial expeditiously. Let a copy of this order be sent to the Court concerned. Order Date :- 25.8.2023 Shiv Digitally signed by :- SHIV KUMAR SHARMA High Court of Judicature at Allahabad