The High Court dismissed an application under Section 482 Cr.P.C. seeking to quash an order recalling a witness under Section 311 Cr.P.C. It held that the lower court acted judicially, assigned cogent reasons, and met the ends of justice.
The application under Section 482 Cr.P.C. to quash the order recalling the witness was dismissed.
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Court No. - 86
Case :- APPLICATION U/S 482 No. - 3638 of 2021
Applicant :- Smt. Indu Kapoor Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mayank Counsel for Opposite Party :- G.A.,Garun Pal Singh
Hon'ble Umesh Kumar,J.
Heard learned counsel for the applicant and learned A.G.A.
This application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned order dated 17.12.2020 passed by Presiding Officer/ Additional Court, Mathura, in application dated 7.12.2020, under Section 311 Cr.P.C. filed by complainant in Criminal Case No. 3683 of 2016 under Section 138 N.I. Act, P.S.- Vrindavan, District- Mathura whereby the learned Court accepted the prayer of complainant for recall the witness PW-1 for further examination as well as accepted the additional evidence filed by the complainant.
Learned counsel for the applicant in support of his arguments draw the attention of the Court on the following Judgements:
1. Natasha Singh Vs. C.B.I. [ Laws (SC)2013 5 31]
2. M.M.T.C. Limited Vs. Medchl Chemicals and Pharma Private Limited [Laws (SC) 2001 11 71
3. Manju Devi Vs. State of Rajasthan and Anothers [Laws (SC) 2019 4 70
Perusal of the aforesaid judgements shows that facts of this case are entirely different.
Before considering respective arguments of the parties, I would like to discuss the scope of Section 311 Cr.P.C., which 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."
The object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in
bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion."
The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar Vs. State of Uttar Pradesh and Another 2011(8) SCC 136.
"17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."
This principle has been further reiterated in Mannan Shaikh and Others Vs. State of West Bengal and Another 2014(13) SCC 9 59 and thereafter in Ratanlal Vs. Prahlad Jat and Others 2017(9) SCC 340 and Swapan Kumar Chatterjee Vs. Central Bureau of Investigation 2019(14) SCC 328 . The relevant paras of Swapan Kumar Chatterjee(supra) are as under:"
"10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and reexamine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and reexamine any such person if his evidence appears to be essential to the just decision of the case.
11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The
power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law."
The aim of every Court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice.
Taking note of the factual matrix of the matter on record, the Ld. Trial Judge, after assigning cogent reasons, allowed the application filed under Section 311 CrPC to meet the ends of justice observing further that no hardship or prejudice would be caused to the respondents accused, since the said witnesses and documents intended to be summoned, will certainly be subjected to cross examination and their testification, as per the provisions of CrPC.
In view of the above, the application stands disposed off .
Order Date :- 16.9.2021//Fhd
2 issues framed by the court
Whether the order recalling a witness for further examination under Section 311 Cr.P.C. should be quashed.
Whether the exercise of discretion under Section 311 Cr.P.C. to recall a witness and accept additional evidence was arbitrary or meeting the ends of justice.
Colour shows how this judgement treated each authority
Natasha Singh Vs. C.B.I.Referred¶8
Law
Vijay Kumar Vs. State of Uttar Pradesh and AnotherExplained¶16
Vijay Kumar Vs. State of Uttar Pradesh and Another 2011(8) SCC 136 · Who else cites this
Mannan Shaikh and Others Vs. State of West Bengal and AnotherExplained¶18
Mannan Shaikh and Others Vs. State of West Bengal and Another 2014(13) SCC 9 59 · Who else cites this
Ratanlal Vs. Prahlad Jat and OthersExplained¶18
Ratanlal Vs. Prahlad Jat and Others 2017(9) SCC 340 · Who else cites this
Swapan Kumar Chatterjee Vs. Central Bureau of InvestigationExplained¶18
Swapan Kumar Chatterjee Vs. Central Bureau of Investigation 2019(14) SCC 328 · Who else cites this
3 provisions across 2 enactments
Smt. Indu Kapoor
State of U.P.
Another
Umesh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
