Smt. Anju Sharma @ Anju Pandey State of U.P. and Another v. Revisionist(s) .....Opposite Party(s) Counsel for Revisionist(s) Counsel for Opposite Party(s) Rakesh Dubey

HON'BLE NALIN KUMAR SRIVASTAVA, J.

1. Heard Rakesh Dubey, learned counsel for the revisionist, Shri Vinay Saran, learned senior advocate assisted by Shri Pradeep Kumar Mishra, learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the record.

2. The present Criminal Revision is being preferred by the revisionist against the order dated 26.8.2025 passed by Additional District Judge, Court No.5, Kanpur Nagar in Sessions Trial No. 195 of 2014 arising out of case crime no. 168 of 2008 under Section 328 I.P.C., P.S.- Naubasta, District- Kanpur Nagar whereby the application under Section 311 Cr.P.C. to summon additional witness as a Court witness was declined.

3. It is submitted by the learned counsel for the revisionist that an application under Section 311 Cr.P.C. was filed by him to summon the I.O. of the case as court witness who was deliberately discharged by the prosecution and thereby hit the valuable right of the accused to cross-examine the I.O. to put the truth before the Court. It is further submitted that it is the primary duty of the Court to conduct the fair trial and to provide proper and fair opportunity to the accused to defend himself. It is further submitted that the accused revisionist is ready and willing to cooperate with the trial Court and she is already doing the same. But if the case is decided on the basis of incomplete facts due to non-examination of I.O. it shall cause great hardship to the accused/revisionist. 2 CRLR No. 5822 of 2025

4. Reliance has been placed upon the judgement of the Hon'ble Apex Court passed in Varsha Garg Vs. State of M.P. and Ors 2022 Live Law (SC) 662. Emphasis has also been laid down in another judgement of the Apex Court passed in Satbir Singh Vs. State of Haryana & Ors 2023 SCC OnLine SC 1086.

5. It is further submitted that the learned trial Court has passed an illegal and arbitrary order dated 26.8.2025 thereby rejecting the application under Section 311 Cr.P.C.

6. Per contra, learned counsel for the opposite party no.2 vehemently opposed the submissions and in the same fashion it is also opposed by the learned A.G.A. It is submitted by the learned counsel for opposite party no.2 that the said revision was filed with an ulterior motive by the accused revisionist. The prosecution has always got a right as to which of the witnesses is to be produced before the trial Court and which not. Since the I.O. who was discharged from evidence by the prosecution had conducted the entire investigation and a final report was submitted in favour of the accused by the same I.O. the prosecution did not consider it proper to produce him as a witness from the prosecution side. It is further submitted that after submission of the final report of the said I.O. on the protest petition filed by opposite party no.2 the learned trial Court rejected the final report and straightway summoned the accused revisionist to face the trial in this matter. It is further submitted that on two occasions Application U/S 482 Cr.P.C. No. 16758 of 2009 and another Application U/S 482 Cr.P.C. No. 21410 of 2009 were preferred by the accused persons of this case to quash the proceedings and charge sheet but both the proceedings were terminated by the co- ordinate Bench of this Court vide order dated 24.5.2016 and 24.5.2016 respectively. It is further submitted that the accused revisionist has always tried to linger on the proceedings of the trial and as such she has moved application under Section 340 Cr.P.C. six times in the trial Court and the trial Court has also indicated the same in its order. It is also submitted that there is no valid basis for allowing the application under Section 311 Cr.P.C. moved by the accused revisionist and no legal error has been committed by the learned trial Court by rejecting the same. 3 CRLR No. 5822 of 2025

7. Heard and perused the record.

8. Para 25 of the case of Varsha Garg (supra) is reproduced hereunder, which has been relied upon by the learned counsel for the revisionist. "25. Further, the Court while relying upon the earlier decisions in J.K. International v. State (Govt. of NCT of Delhi)14, Zahira Habibulla H. Sheikh v. State of Gujarat15, Manu Sharma v. State (NCT of Delhi)16 , Mohanlal Shamji Soni v. Union of India17, Rajendra Prasad v. Narcotic Cell18, noted: “31 ...a criminal court cannot remain a silent spectator. It has got a participatory role to play and having been invested with enormous powers under Section 311 CrPC, as well as Section 165 of the Evidence Act, a trial court in a situation like the present one where it was brought to the notice of the court that a flagrant contradiction in the evidence of PW 18 who was a statutory authority and in whose presence the test identification parade was held, who is also a Judicial Magistrate, ought to have risen to the occasion in public interest and remedied the situation by invoking Section 311 CrPC, by recalling the said witness with further direction to the Public Prosecutor for putting across the appropriate question or court question to the said witness and thereby set right the glaring error accordingly. It is unfortunate to state that the trial court miserably failed to come alive to the realities as to the nature of evidence that was being recorded and miserably failed in its duty to note the serious flaw and error in the recording of evidence of PW 18. ”

9. The other case law of Satbir Singh (supra) cited by the learned counsel for the revisionist is also considered by this Court.

10. So far as the present case is concerned, since the prosecution has got exclusive right to produce the witness before the trial Court, there is no embargo upon the right of the prosecution that it has to examined all the witnesses of the charge sheet by virtue of the provisions of section 134 of Evidence Act. So far as the prayer made by learned counsel for the revisionist accused to summon the I.O. of this case as a Court witness is concerned, there are two parts of the provisions provided under Section 311 Cr.P.C. In the first part the 4 CRLR No. 5822 of 2025 power of the Court is discretionary and it may or may not allow the request made by either of the parties or even suo moto. The second part of Section 311 Cr.P.C. made it obligatory upon the Court that it has to summon any witness the deposition of whom appears to be essential for the just decision of the case. So far as the present case is concerned the application was moved by the revisionist accused under Section 311 Cr.P.C. is treated to be moved under section 311(1) Cr.P.C. which denotes the discretion of the Court to call any witness under Section 311 Cr.P.C. So far as the impugned order is concerned it appears that the trial Court never refused to examine the I.O. of this case before it but the question arises whether it should be summoned as a Court witness or the accused may produce him as a witness of defence.

11. In my view, the present application lies under Section 311 (1) Cr.P.C. and it was not obligatory at all upon the Court to summon the I.O. as a Court witness in the case. This Court also realises that evidence of the I.O. is essential in the circumstances of this case but it was not necessary for the Court to summon it as a Court witness and since the matter is pending at the stage of recording the statement under Section 313 Cr.P.C. the accused revisionist has got a full right to call for the I.O. concerned as a defence witness and such request may be made by her to the trial Court to summon the I.O. as a defence witness. The revisionist accused may move an application to produce the I.O. as a defence witness and this plea can be taken by her in her statement under Section 313 Cr.P.C.

12. The present criminal revision is disposed of in the light of the observations made herein above.

13. Office is directed to send a copy of this order to the learned trial court. September 24, 2025 Fhd (Nalin Kumar Srivastava,J.) FAHAD NIYAZ High Court of Judicature at Allahabad

HON'BLE NALIN KUMAR SRIVASTAVA, J.

1. Heard Rakesh Dubey, learned counsel for the revisionist, Shri Vinay Saran, learned senior advocate assisted by Shri Pradeep Kumar Mishra, learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the record.

2. The present Criminal Revision is being preferred by the revisionist against the order dated 26.8.2025 passed by Additional District Judge, Court No.5, Kanpur Nagar in Sessions Trial No. 195 of 2014 arising out of case crime no. 168 of 2008 under Section 328 I.P.C., P.S.- Naubasta, District- Kanpur Nagar whereby the application under Section 311 Cr.P.C. to summon additional witness as a Court witness was declined.

3. It is submitted by the learned counsel for the revisionist that an application under Section 311 Cr.P.C. was filed by him to summon the I.O. of the case as court witness who was deliberately discharged by the prosecution and thereby hit the valuable right of the accused to cross-examine the I.O. to put the truth before the Court. It is further submitted that it is the primary duty of the Court to conduct the fair trial and to provide proper and fair opportunity to the accused to defend himself. It is further submitted that the accused revisionist is ready and willing to cooperate with the trial Court and she is already doing the same. But if the case is decided on the basis of incomplete facts due to non-examination of I.O. it shall cause great hardship to the accused/revisionist. 2 CRLR No. 5822 of 2025

4. Reliance has been placed upon the judgement of the Hon'ble Apex Court passed in Varsha Garg Vs. State of M.P. and Ors 2022 Live Law (SC) 662. Emphasis has also been laid down in another judgement of the Apex Court passed in Satbir Singh Vs. State of Haryana & Ors 2023 SCC OnLine SC 1086.

5. It is further submitted that the learned trial Court has passed an illegal and arbitrary order dated 26.8.2025 thereby rejecting the application under Section 311 Cr.P.C.

6. Per contra, learned counsel for the opposite party no.2 vehemently opposed the submissions and in the same fashion it is also opposed by the learned A.G.A. It is submitted by the learned counsel for opposite party no.2 that the said revision was filed with an ulterior motive by the accused revisionist. The prosecution has always got a right as to which of the witnesses is to be produced before the trial Court and which not. Since the I.O. who was discharged from evidence by the prosecution had conducted the entire investigation and a final report was submitted in favour of the accused by the same I.O. the prosecution did not consider it proper to produce him as a witness from the prosecution side. It is further submitted that after submission of the final report of the said I.O. on the protest petition filed by opposite party no.2 the learned trial Court rejected the final report and straightway summoned the accused revisionist to face the trial in this matter. It is further submitted that on two occasions Application U/S 482 Cr.P.C. No. 16758 of 2009 and another Application U/S 482 Cr.P.C. No. 21410 of 2009 were preferred by the accused persons of this case to quash the proceedings and charge sheet but both the proceedings were terminated by the co- ordinate Bench of this Court vide order dated 24.5.2016 and 24.5.2016 respectively. It is further submitted that the accused revisionist has always tried to linger on the proceedings of the trial and as such she has moved application under Section 340 Cr.P.C. six times in the trial Court and the trial Court has also indicated the same in its order. It is also submitted that there is no valid basis for allowing the application under Section 311 Cr.P.C. moved by the accused revisionist and no legal error has been committed by the learned trial Court by rejecting the same. 3 CRLR No. 5822 of 2025

7. Heard and perused the record.

8. Para 25 of the case of Varsha Garg (supra) is reproduced hereunder, which has been relied upon by the learned counsel for the revisionist. "25. Further, the Court while relying upon the earlier decisions in J.K. International v. State (Govt. of NCT of Delhi)14, Zahira Habibulla H. Sheikh v. State of Gujarat15, Manu Sharma v. State (NCT of Delhi)16 , Mohanlal Shamji Soni v. Union of India17, Rajendra Prasad v. Narcotic Cell18, noted: “31 ...a criminal court cannot remain a silent spectator. It has got a participatory role to play and having been invested with enormous powers under Section 311 CrPC, as well as Section 165 of the Evidence Act, a trial court in a situation like the present one where it was brought to the notice of the court that a flagrant contradiction in the evidence of PW 18 who was a statutory authority and in whose presence the test identification parade was held, who is also a Judicial Magistrate, ought to have risen to the occasion in public interest and remedied the situation by invoking Section 311 CrPC, by recalling the said witness with further direction to the Public Prosecutor for putting across the appropriate question or court question to the said witness and thereby set right the glaring error accordingly. It is unfortunate to state that the trial court miserably failed to come alive to the realities as to the nature of evidence that was being recorded and miserably failed in its duty to note the serious flaw and error in the recording of evidence of PW 18. ”

9. The other case law of Satbir Singh (supra) cited by the learned counsel for the revisionist is also considered by this Court.

10. So far as the present case is concerned, since the prosecution has got exclusive right to produce the witness before the trial Court, there is no embargo upon the right of the prosecution that it has to examined all the witnesses of the charge sheet by virtue of the provisions of section 134 of Evidence Act. So far as the prayer made by learned counsel for the revisionist accused to summon the I.O. of this case as a Court witness is concerned, there are two parts of the provisions provided under Section 311 Cr.P.C. In the first part the 4 CRLR No. 5822 of 2025 power of the Court is discretionary and it may or may not allow the request made by either of the parties or even suo moto. The second part of Section 311 Cr.P.C. made it obligatory upon the Court that it has to summon any witness the deposition of whom appears to be essential for the just decision of the case. So far as the present case is concerned the application was moved by the revisionist accused under Section 311 Cr.P.C. is treated to be moved under section 311(1) Cr.P.C. which denotes the discretion of the Court to call any witness under Section 311 Cr.P.C. So far as the impugned order is concerned it appears that the trial Court never refused to examine the I.O. of this case before it but the question arises whether it should be summoned as a Court witness or the accused may produce him as a witness of defence.

11. In my view, the present application lies under Section 311 (1) Cr.P.C. and it was not obligatory at all upon the Court to summon the I.O. as a Court witness in the case. This Court also realises that evidence of the I.O. is essential in the circumstances of this case but it was not necessary for the Court to summon it as a Court witness and since the matter is pending at the stage of recording the statement under Section 313 Cr.P.C. the accused revisionist has got a full right to call for the I.O. concerned as a defence witness and such request may be made by her to the trial Court to summon the I.O. as a defence witness. The revisionist accused may move an application to produce the I.O. as a defence witness and this plea can be taken by her in her statement under Section 313 Cr.P.C.

12. The present criminal revision is disposed of in the light of the observations made herein above.

13. Office is directed to send a copy of this order to the learned trial court. September 24, 2025 Fhd (Nalin Kumar Srivastava,J.) FAHAD NIYAZ High Court of Judicature at Allahabad