Dismissed

Hambeer Singh v. State of U.P. and Another

Allahabad HC18 Nov 2019A482/40712/2019

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 Cr.P.C. challenging the rejection of a Section 311 Cr.P.C. prayer to recall a witness. The court held the trial court was correct, noting the application came after a significant delay during which cross-examination opportunities were unutilized, amounting to an attempt to prolong the trial.

What did the court decide?

Disapproves the prayer for recall of the witness and dismisses the application under Section 482 Cr.P.C.

Hambeer Singh Vs State of U.P. and Another — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 76

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Case :- APPLICATION U/S 482 No. - 40712 of 2019

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Applicant :- Hambeer Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhishek Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Abhishek Kumar, learned counsel for the applicant and Mr. P.K. Shahi, learned counsel for the State as well as perused materials available on record.

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This application under Section 482 Cr.P.C. has been preferred by the applicant against the order dated 26th July, 2019 passed by the learned Additional Sessions Judge, Court No. 12, Agra in S.T. No. 499 of 2012 (State Vs. Mahanveer & Others), arising out of Case crime No. 388 of 2010, under Sections 307 and 506 I.P.C., Police Station Malpura, District-Agra as well as further proceedings of the S.T. No. 499 of 2012 (State Vs. Mahanveer & Others.

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Under the order impugned, the application made by the applicant under Section 311 Cr.P.C. being Application Paper No. 78 seeking recall of the P.W.-2, namely, Neeraj for his cross-examination, has been rejected.

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The basic facts of this case, in brief, are that the applicant is facing trial for the offence under Section 307 and 506 IPC. In the trial, statements of PW-1- Badan Singh/informant, PW-2- Neeraj and P.W.-3-Pintu (P.W.-2 and P.W.3 are sons of P.W.-1 and both are injured in the present case) have been recorded. Thereafter, revisionist has moved an application dated 23rd July, 2019 under section 311 Cr.P.C. for recall of PW-2-Neeraj for his crossexamination mainly on the ground that since the cross-examination of P.W.-2 has not been made by the counsel of the applicant, seeing the complicity of the accused-applicant and injuries sustained by both the injured, recall of P.W.-2 for his crossexamination is necessary in the interest of justice. Therefore, prayer for recall of P.W.-2 is made by means of the aforesaid application.

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It is submitted by learned counsel for the applicant that since the trial court has committed illegality in rejecting the application under section 311 Cr.P.C. of the applicant and in not providing an opportunity for cross-examination to PW-2, serious prejudice is caused to the applicant. It is also stated that since the investigation of the aforesaid case crime number, a charge-sheet has been submitted by the Investigating Officer being Charge-Sheet No. 212 dated 13th December, 2010 against the applicant and other, detailed cross-examination from PW-2 is required in the interest of justice. It is next submitted that on the date P.W.-2 has been examined, his cross-examination has not been done by his counsel.If any wrong is done by his counsel not to cross-examine P.W.-2 on the date he has been examined, the applicant cannot be penalized. Therefore, in the interest of justice, an opportunity is to

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be afforded to the applicant for cross-examination of P.W.-2. Lastly, it is submitted that the impugned order dated 26th July, 2019 is not sustainable in the eye of law and is liable to be set aside by this Court.

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Per contra, learned A.G.A. vehemently opposed the prayer of the applicant by contending that application under section 311 Cr.P.C. has been moved by the applicant only in order to prolong the trial and to get PW-2 resiled from his previous statement. It is also submitted that the application under section 311 Cr.P.C. has been moved after about six years from 8th May, 2013 when the argument of defence has been closed. It is next submitted that in the order impugned it has specifically been recorded that on five occasion dates were fixed for cross-examination of P.W.-2 but he has not been examined from the applicant's side and now the opportunity for cross examination has been closed and on the basis of application under Section 311 Cr.P.C., the applicant wants to prolong the matter. Lastly, it is submitted that there is no illegality in the order dated 26th July, 2019 as it is settled law that the application under section 311 Cr.P.C. cannot be allowed to fill up the lacunae, as such, the present application is liable to be dismissed.

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After having heard the argument of learned counsel for the parties and perusing the record, I find that the trial court while rejecting the application under section 311 Cr.P.C. of the applicant by the order dated 26th July, 2019 has recorded the specific finding that the application under section 311 Cr.P.C. has been moved after about six years from 8th May, 2013 when the argument of defence has been closed. It has specifically been recorded that on five occasion dates were fixed for cross-examination of P.W.-2 but he has not been examined from the applicant's side and now the opportunity for cross examination has been closed and on the basis of application under Section 311 Cr.P.C., the applicant wants to prolong the matter

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The facts and circumstances of the case clearly indicated that the said application has been moved by the applicant only to linger on the trial of the aforesaid criminal case.

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The very use of the words in Section 311 Cr.P.C., such as 'any court', 'at any stage' or 'of any inquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of this Court in any way. However, very width requires corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection consistently with the provisions of the Code. It is settled that the provision of Section 311 Cr.P.C. cannot be invoked to recall witness to resile from his previous statement. The object underlying in Section 311 of Cr.P.C. is that there may not be failure of justice on account of either party in bringing valuable evidence on record of living ambiguity in the statement of witnesses examined from either side. Determinative factor is whether it is essential for the just decision of the case or not. It is also settled that the power under Section 311 Cr.P.C. could not be invoked by

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the Court to fill up lacunae unless the Court is satisfied that in the interest of justice, it is necessary to invoke to said extraordinary power.

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The fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. It is not possible to lay down precise situations when such power can be exercised. The Legislature in its wisdom has left the power undefined. Thus, the scope of power under Section 311 Cr.P.C. has to be considered from case to case.

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Considering the materials brought on record and keeping the principles laid down by the Hon'ble Supreme Court for exercise of power under section 311 Cr.P.C., this Court is of the view that presumption, observations and findings recorded by the trial Court in rejecting the application under Section 311 Cr.P.C. of the revisionist under the facts and circumstances of the case are fully sustainable. The trial Court has committed no illegality in rejecting the application of the revisionist. There appears no abuse of process of the Court also. There is no evidence on record to satisfy this Court that trial would be seriously prejudiced if the said witness is not recalled for re-examination.

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In view of the above, the application of the applicant under Section 482 Cr.P.C. having no merit deserves to be dismissed. In the result, the present application is dismissed.

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Office is directed to communicate this order to the concerned trial Court.

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(Manju Rani Chauhan, J.)

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Order Date :- 18.11.2019

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Sushil/-

Hambeer Singh v. State of U.P. and Another

Case brief

What is this about?

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Hambeer Singh v. State of U.P. and Another

Case brief

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