Dismissed

Satyabhan v. State of U.P. and Another

Allahabad HC7 Jun 2022A482/14188/2022

Case brief

AI extract

What is this about?

In this criminal matter, the High Court dismissed an application under Section 482 Cr.P.C. challenging the rejection of a Section 311 Cr.P.C. application. The applicant sought to recall the victim to prove evidence of terminated pregnancy affecting the grave charge of Section 313 IPC. The court held the application was misconceived and the victim's evidence was not essential for a just decision.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed; impugned order rejecting Section 311 application upheld.

Satyabhan Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 51

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Case :- APPLICATION U/S 482 No. - 14188 of 2022

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Applicant :- Satyabhan Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sudhanshu Kumar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Raj Beer Singh,J.

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The instant application under section 482 Cr.PC. has been filed against order dated 29.04.2022 passed by Additional District and Sessions Judge/Special Judge (POCSO Act), Court No.1, Firozabad in P.S.T. No. 617 of 2015 under sections 363, 366, 376 IPC and 3/4 POCSO Act, whereby the application filed by the applicant under section 311 Cr.P.C. has been rejected.

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It has been argued by learned counsel for the applicant that the applicant was falsely implicated in this case and that no case is made out against the applicant. Learned counsel submitted that now applicant is facing trial in the said case since the year 2015. The applicant has moved an application u/s. 311 Cr.P.C. before the trial court alleging that PW3 (victim) has stated in her statement that she was having pregnancy of six weeks and when she had gone to her parental home, her pregnancy was terminated and, thus, offence u/s. 313 IPC has been committed and in these circumstances, the summoning/recall of PW3 was necessary for further cross-examinations. Learned counsel submitted that impugned order is against facts and law and liable to be set aside.

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Learned AGA submitted that the trial is pending at the stage of final argument and that there are absolute no reasons to recall PW3 for further cross examination. It is submitted that there is absolutely no illegality or perversity in the impugned order.

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I have considered the rival submissions and perused the record.

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Perusal of the record shows that applicant is accused in the above-stated case. During trial, he has moved an application u/s. 311 Cr.P.C. for recalling of PW3 (victim) on the ground that her further cross-examination is necessary to show

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that her family members have committed the offence u/s. 313 IPC, as her family members have got her pregnancy terminated.

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At this stage, it would be appropriate to refer to the provisions of section 311 Cr.P.C., which reads as under:

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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 re- examine any such person if his evidence appears to it to be essential to the just decision of the case.

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It is well settled that court is empowered to summon, recall or re-examine any witness at any stage of trial who has already been examined if his evidence appears to the Court to be essential to the just decision of the case. In case of Natasha Singh vs. CBI 2013 SCC, the Court has held as under:

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"8. Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

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15, The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party.

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The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.

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The very use of words such as 'any Court', 'at any stage", or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."

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In the instant case, it is apparent from the above-stated provision and law that the court may summon a person as witness or recall and re-examine a person, who has already been examined, if his evidence appears to it to be essential to

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the just decision of the case. Thus, though a person already examined can be summoned for re-examination or further examination but condition is, if his evidence appears to the Court, to be essential to arrive at a just decision of the case. In the instant case, it is apparent that applicant is seeking recall of PW-3 (victim) alleging that in her statement she has stated that at the time of her recovery she was pregnant but later on her pregnancy was terminated and thus an offence under Section 313 IPC has been committed. It is quite apparent that for that purpose the provisions of Section 311 Cr.P.C. can hardly be invoked. In fact the application of applicant under Section 311 Cr.P.C. is quite vague and misleading. As noted above, the recalling of said witness PW-3 (victim) is not necessary for just decision of the case. In view of all these facts it appears that application moved by applicant under Section 311 Cr.P.C. was thoroughly misconceived and it has rightly been rejected by the Court below.

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There is absolutely no illegality or perversity in the impugned order.

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The instant application u/s. 482 Cr.P.C. is misconceived and is hereby dismissed.

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Order Date :- 7.6.2022 A. Tripathi/Madhurima

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Digitally signed by AKHILESH TRIPATHI Date: 2022.06.08 14:31:40 IST Reason: Location: High Court of Judicature at Allahabad

Satyabhan v. State of U.P. and Another

Case brief

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Satyabhan v. State of U.P. and Another

Case brief

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