Navin Niraw Pandey v. State of UP and Another), whereby the criminal revision preferred by the
Case Details
Neutral Citation No. - 2024:AHC:172918 Court No. - 86 Case :- CRIMINAL REVISION No. - 3425 of 2024 Revisionist :- Dharm Prakash Singh Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ashok Kumar Upadhyay,Shailendra Kumar Singh Counsel for Opposite Party :- Dharmendra Kumar Shukla,G.A. Hon'ble Ram Manohar Narayan Mishra,J.
Legal Reasoning
1. Heard learned counsel for the revisionist, learned counsel for the opposite party No.2, learned AGA for the State and perused the material placed on record. 2. Instant criminal revision has been preferred by the informant in criminal case concerned against the impugned judgement and order dated 26.6.2024, passed by Additional District and Sessions Judge/Special Judge (POCSO), Court No.03, Varanasi in Criminal Revision No.59 of 2024, (Navin Niraw Pandey vs. State of UP and Another), whereby the criminal revision preferred by the accused against the order dated 23.1.2024, passed in Criminal Case No.11098 of 2021 (State vs. Navin Niraw Pandey), arising out of Case Crime No.550 of 2020, under Sections 406, 504, 506 IPC, Police Station Bhelupur, District Varanasi has been allowed. By the impugned order dated 23.1.2024, learned trial court has allowed the application dated 10.11.2023 moved by the informant on a cost of Rs.1000/- and fixed the case for Examination-in-Chief of PW-1. 3. On perusal of record, it appears that in Criminal Case No.11098 of 2021, statement of PW-1 Dharm Prakash Singh was recorded on 24.5.2023. After the Examination-in-Chief and cross-examination, the informant/PW-1 had filed an application under Section 311 Cr.P.C. for re-examination of PW-1 for rectification of certain errors which crept in due to clerical error in his statement-in-Chief. Rectification was sought in the statement of witness regarding cheque number, date, account number as well as amount, which is mentioned as Rs.1,30,000/- in the statement of PW-1 whereas according to the revisionist, it should be Rs.1,20,000/-. Learned trial court allowed the application of the informant on Rs.1000/- cost and fixed the case for Examination-in-Chief of PW-1. Feeling aggrieved by the order of learned trial court, accused had filed a criminal revision, which was allowed by the learned Additional Sessions Judge (POCSO), Court No.3, Varanasi and impugned order dated 23.1.2024 was set aside. Learned trial court has been directed to decide the application under section 311 Cr.P.C. after hearing the parties and in accordance with law. Learned revisional court has observed that the informant could not clarify in his application under Section 311 Cr.P.C. that under what provisions of Cr.P.C., he seeks to rectify his testimony by filing said application. It is alos observed that application was filed after 5 months of recording of evidence of PW-1. 4. Learned counsel for the revisionist submits that the order passed by the learned trial court is a just and reasoned order, which needed no interference by revisional court, however, the revisional court has taken hyper technical approach while deciding the criminal revision and setting aside the order of trial court. On 24.5.2023, there was excessive crowd in the trial court and there was many persons present due to fixation of civil and criminal matters in the court. The revisionist could not read his testimony on that day and there were interruptions in recording of evidence due to noise. The order passed by the learned trial court is well within the jurisdiction and did not warrant any interference. Provisions of Section 311 Cr.P.C. is fully applicable in the case as the present application was filed to correct/rectify the clerical mistake. The opposite party No.2 filed criminal revision merely to twist the matter inasmuch as the allegations made in the revision could be looked into and appreciated at the stage of trial being the subject matter of entire fact and evidence. The criminal revision was preferred by opposite party No.2 only with a view to prolong the trial of the case. The revisional court has not recorded specific finding as to on what ground the revision has been allowed. The revision was not maintainable in as much as the impugned order is an interlocutory order. Learned counsel for the revisionist lastly submits that with disposal of present revision, appropriate directions may kindly be issued to trial court for early disposal of trial preferably within some stipulated period. He further submits that the application under Section 311 Cr.P.C. was not filed with a view to fill up the lacunae in the prosecution case but only with a view to serve the ends of justice. The application under Section 311 Cr.P.C. has not been decided by trial court as yet pursuant to direction of lower revisional court. 5. Per contra, learned counsel for the opposite party No.2 submits that the revisional court has only set aside the impugned order dated 23.1.2024 and has remanded the matter to trial court with direction to decide the application afresh after giving opportunity of hearing to both the parties. The revisionist is not likely to suffer by the impugned order as the final order is yet to be passed on application under Section 311 Cr.p.C. filed by the revisionist. There is no illegality or irregularity in impugned order passed by lower revisional court. 6. In present revision, a question was raised regarding maintainability of application under Section 311 Cr.P.C., which was allowed by the learned trial court with prayer to recall PW-1 with a view to clarify certain errors in his statement-in-chief recorded by learned trial court. The errors pointed out in the statement of PW-1 Dharm Prakash Singh relates to amount of money which is stated in the evidence as Rs.1,30,000/- whereas according to the applicant, it should be Rs.1,20,000/-. Similarly the applicant has stated in application under Section 311 Cr.P.C. that in fifth line of statement, cheque number has been wrongly mentioned and on Page No.4, date is wrongly mentioned as 13.5.2015 whereas the correct date is 31.3.2015. Account number also requires correction in line No.7. There is no provision in amendment of sworn testimony of a witness recorded in the court during any inquery or trial. However, there is no impediment to recall a witness, who has already been examined to clarify certain points or to remove ambiguity which has crept in his evidence due to inadvertence or due to clerical error in recording the same. The case of the applicant/revisionist is that due to heavy rush in the court at the time of recording of his evidence in examination-in- chief, certain typographical errors occurred in his statement , which was recorded by the reader of the court on dictation of Presiding Officer. A perusal of application under Section 311 Cr.P.C. filed by the applicant before the trial court reveals that the application has not been filed with a view to fill up the lacunae in the statement of the witnesses but only with a view to remove certain ambiguity which has occurred due to typographical error in regard to date, cheque number, amount, account number etc. These things are matter of record. Therefore, there is no illegality or irregularity in the order passed by the learned trial court while allowing the application 311 Cr.P.C. and summoning PW-1 for his re-examination in respect of these matters specifically mentioned in application under Section 311 Cr.P.C. 7. Section 311 Cr.P.C. 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 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. [311-A. Power of Magistrate to order person to give specimen signatures or handwriting. [Inserted by Act of 2005, Section 27 (w.e.f. 23-6-2006).]- If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Provided that no order shall be made under this Section unless the person has at some time been arrested in connection with such investigation or proceeding.]" 8. The above stated provision makes it crystal clear that the criminal court has ample power to recall or re-examine any person as a witness, who has already been examined if his evidence appears to it to be essential to the just decision of the case. The term 'just decision of the case' is the golden threat that run through the horizon of wide power exercisable by the court under Section 311 Cr.P.C. at the stage of any inquiry, trial or other proceeding under this code. 9. It is difficult to discern that simply summoning a witness who has already been examined at the instance of the party, who has produced and examined him to rectify certain clerical error will in any manner jeoparadise the interest of accused/respondent. The revisional court has travelled beyond its jurisdiction to set aside the order dated 23.1.2024, passed by the learned trial court and remanding the matter to trial court for decision afresh on application under Section 311 Cr.P.C. The order dated 10.11.2023 passed by the learned trial court which has been set aside by the revisional court is an interlocutory order and simply by re- examining PW-1 by the prosecution to clarify certain points specifically pointed out in the application under Section 311 Cr.P.C. it will not decide the proceedings finally. The order dated 23.1.2024 passed by the learned ACJM is an interlocutory order an revision was not maintainable against the impugned order. Consequently, the impugned order dated 26.6.2024 passed by learned revisional court/Additional Sessions Judge, POCSO Act, Court No.3, Varanasi in Criminal Revision No.59 of 2024, (Navin Niraw Pandey vs. State of UP and Another) deserves to be set aside. The impugned order passed by Revisional Court can not be sustained being vitiated by illegality. 10. Accordingly, present revision stands allowed and the impugned order passed by the learned revisional court is set aside. 11. The matter is relegated to trial court to proceed in terms of its order dated 23.1.2024, passed on application under Section 311 Cr.P.C.It is needless to say that the re-examination of the PW-1 will strictly be confined to the matters stated in application under Section 311 Cr.P.C. filed by the informant and the accused side shall have an opportunity to cross-examine the witness also only in respect of those points. Order Date :- 5.11.2024 Kamarjahan Digitally signed by :- KAMARJAHAN ANSARI High Court of Judicature at Allahabad