Dismissed

Sonu v. State of Up and Another

Allahabad HC2 Jan 2020A482/44125/2019

Case brief

AI extract

What is this about?

The High Court rejected an application under Section 482 Cr.P.C. seeking to quash an order allowing the re-examination of a prosecution witness under Section 311 Cr.P.C. Held that substantial justice warranted the re-examination despite a 19-year delay and distinguished the cited precedent.

What did the court decide?

Application under Section 482 Cr.P.C. was rejected as it was devoid of merits; no interference with the lower court's order.

Sonu Vs State of Up and Another — Criminal Trial and Appeal | Allahabad HC (2020)

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A.F.R. Court No. - 76

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Case :- APPLICATION U/S 482 No. - 44125 of 2019 Applicant :- Sonu Opposite Party :- State of U.P. and Another Counsel for Applicant :- Bhaskar Bhadra Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Bhaskar Bhadra, learned counsel for the applicant and Mr. Prashant Kumar, learned A.G.A. for the State.

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The present 482 Cr.P.C. application has been filed to quash the order dated 30th October, 2019 passed by the Additional Sessions Judge, Court No. 15, Bareilly in Sessions Trial No. 727 of 2001 (State Vs. Nisar Ahmad & Others) arising out of Case Crime No. 538 of 2000, under Sections-396 and 120-B I.P.C., Police StationBahedi, District-Bareilly, whereby the application made by opposite party no.2 under Section 311 Cr.P.C. for re-examination of Prosecution Witness No.2, namely, Ashok Kumar has been allowed.

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Learned counsel for the applicant submits that the court below, without considering the objection and evidences available on record has passed the impugned order, allowing the application of opposite party no.2 under Section 311 Cr.P.C. It is further submitted that in the trial of the aforesaid case, the evidences between the parties have already been ended and the trial is at the final stage, therefore, the application filed by the prosecution for re-examination of P.W.-2, namely, Ashok Kumar after 19 years delay, is not maintainable. It is further submitted that P.W. -2 Ashok Kumar has already been examined and cross-examined on 19^th September, 2006 and when the prosecution thought that the prosecution would not succeed in the instant session trial then with the collusion of said witness, is trying to re-examine him, in an effort to succeed,, which is not permissible under law in any manner. He, therefore, submits that the order impugned, passed by the Additional Sessions Judge, is absolutely illegal, arbitrary, contrary to the evidence on record and is

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also beyond time, hence the same is liable to be quashed. In support of his plea, learned counsel for the applicant has placed reliance upon a judgment of the Rajasthan High Court (Jaipur Bench) in the case of Raghunath Prasad Vs. State of Rarjasthan, reported in 1997 LawSuit (Raj) 12.

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Per contra, Mr. Prashant Kumar, learned A.G.A. for the State has opposed the submission made by the learned counsel for the applicant by contending that the order impugned passed by the court below is legal and valid. The court below has recorded pure finding of fact while allowing the application filed by opposite party no.2 under Section 311 Cr.P.C. for re-examination of P.W.-2, namely, Ashok Kumar for identifying Exhibit-Ka-3. The court below has not committed any error in passing the impugned order, therefore, do not call for any interference by this Court. Hence, he submits that the present application is liable to be rejected.

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I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application.

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Before ascertaining correctness of aforesaid submissions having been made by the learned counsel for the parties, vis-a-vis, impugned order passed by the learned court below, this Court deems it proper to take note of the provisions of law contained under Section 311 CrPC:

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"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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case."

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Careful perusal of aforesaid provision clearly suggests that

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court enjoys vast power to summon any person as a witness or recall and re-examine a witness provided same is essentially required for just decision of the case. Moreover, such exercise of power can be at any stage of inquiry, trial or proceedings under the Code, meaning thereby, applicant can file an application at any time before conclusion of trial. Very object of Section 311 is to bring on record evidence not only from the point of view of accused and prosecution but also from the point of view of the orderly society.

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Otherwise also, it is well established principle of criminal jurisprudence that discovery, vindication and establishment of truth are main purposes of underlying object of courts of justice. It is also well settled that wider the power, greater the responsibility upon court, which exercises such power and exercise of such power cannot be untrammeled and arbitrary, rather same must be guided by object of arriving at a just decision of case. Close scrutiny of aforesaid provision of law further suggests that Section 311 has two parts; first part reserves a right to the parties to move an appropriate application for re-examination of a witness at any stage; but definitely the second part is mandatory that casts a duty upon court to re-examine or recall or summon a witness at any stage if his/her evidence appears to be essential for just decision of case because, definitely the underlying object of aforesaid provision of law is to ensure that there is no failure of justice on account of mistake on the part of either of parties in bringing valuable piece of evidence or leaving an ambiguity in the statements of witnesses examined from either side.

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The Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another , reported in (2013)14 SCC 461 , has held that power under Section 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case. It may be relevant to take note of the following paras of the judgment:-

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"14. A conspicuous reading of Section 311 Cr.P.C.

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would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and reexamination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.”

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In this context, I also wish to make a reference to the judgment of the Apex Court in Mannan SK and others vs. State of West

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Bengal and another reported in AIR 2014 SC 2950, wherein the the Apex Court Court has held as under:-

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"10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word 'shall'. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The court must form an opinion that for the just decision of the case recall or reexamination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine."

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Aforesaid exposition of law clearly suggests that a fair trial is main object of criminal jurisprudence and it is duty of court to ensure such fairness is not hampered or threatened in any manner. It has been further held in the aforesaid judgments that fair trial entails interests of accused, victim and society and therefore, grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. The Apex Court has categorically held in the aforesaid judgment that adducing evidence in support of the defence is a valuable right and denial of

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such right would amount to denial of a fair trial.

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Further, the Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another reported in (2013)14 SCC 461 , while culling out certain principles required to be borne in mind by the courts while considering applications under Section 311 has held that exercise of widest discretionary powers under Section 311 should ensure that judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts. Hon'ble Apex Court has further held that if evidence of any witness appears to be essential for the just decision of the case, it is the duty of the court to summon and examine or recall and re-examine any such person because very object of exercising power under Section 311 is to find out truth and render a just decision. Most importantly, in the judgment referred to herein above, the Apex Court has held that court should bear in mind that no party in trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

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There is no dispute that P.W.-2 has already been examined and cross-examined but perusal of the application made by opposite party no.2 under Section 311 Cr.P.C. as well as the order impugned indicate that P.W. -8, namely, Naseer Ahmad had already proved Exhibit Ka-3 but had not identified the accused persons and the informant Kamal Kumar and P.W.-2 Ashok Kumar had earlier identified the accused persons but since informant Kamal Kumar had expired, re-examination of P.W.-2 Ashok Kumar is required to identify Exhibit-Ka-3 as he was the witness of the same. From the finding recorded by the court below under the order impugned, this Court finds no illegality or infirmity in the order impugned. The court below while referring to the provisions of Section 311 Cr.P.C. and the law laid by the Apex Court, has rightly allowed the application made by opposite party no.2 under Section 311 Cr.P.C. The delay in reexamination of P.W.-2 pleaded by the learned counsel for the

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applicant is a so technical plea, which may hamper the interest of substantial justice. It is settled law that all Courts of law are established for furtherance of interest of substantial justice and not to obstruct the same on technicalities. In Jai Jai Ram Manohar Lal vs. National Building Material Supply ; AIR 1969 SC 1267 , the Apex Court has held that if substantial justice and technicalities are pitted against each other, the cause of substantial justice should not be defeated on technicalities. No procedure in a Court of law should be allowed to defeat the cause of substantial justice on some technicalities. The Apex Court has reiterated the same in the case of Ghanshyam Dass & Ors. vs. Dominion of India & Ors ; reported in (1984) 3 SCC 46 . The judgment of the Rajasthan High Court relied upon by the learned counsel for the applicant in the case of Raghunath Prasad (Supra) is clearly distinguishable in the facts of the present case.

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In view of the aforesaid, I find no good reason to interfere with the order impugned. The present application devoid of merits and is accordingly rejected.

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(Manju Rani Chauhan, J.)

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Order Date :- 2.1.2020 Sushil/-

Sonu v. State of Up and Another

Case brief

What is this about?

What did the court decide?

Sonu v. State of Up and Another

Case brief

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