Dismissed

Smt Sangeeta Agarawal v. State of U.P. and Another

Allahabad HC9 May 2022A482/9976/2022

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C., the High Court examined the legality of the lower court's order summoning an informant for re-examination to produce a suicide note in a Section 306 IPC case. The court applied guidelines from Rajaram Yadav, concluding the order was valid as it sought to ensure a just decision rather than fill a lacuna. The application was rejected.

What did the court decide?

The application under Section 482 Cr.P.C. to quash the order summoning PW-1 under Section 311 Cr.P.C. was rejected.

Smt Sangeeta Agarawal Vs State of U.P. and… — Civil Procedure and Limitation | Allahabad HC (2022)

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Court No. - 91

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Case :- APPLICATION U/S 482 No. - 9976 of 2022

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Applicant :- Smt Sangeeta Agarawal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Saurabh Chaturvedi,Sr. Advocate Counsel for Opposite Party :- G.A.

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Hon'ble Sameer Jain,J.

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Certified copy of the statement of PW-1 (Anant Prakashopposite party no. 2) provided by learned counsel for the applicant, is taken on record.

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Heard Sri I.K. Chaturvedi, learned Senior Counsel for the applicant assisted by Sri Saurabh Chaturvedi, learned counsel for the applicant and Sri Vinod Kant, learned Additional Advocate General assisted by Mr. Arvind Kumar, learned AGA for the State-respondent.

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By way of filing present application u/s 482 Cr.P.C., applicant challenged the order dated 30.3.2022 passed by Additional District and Sessions Judge, Court No. 10, Firozabad in Sessions Trial No. 91 of 2018 (State Vs. Smt. Sangeeta Agarwal), under Section 306 IPC by which learned court below summoned PW-1(informant) under Section 311 Cr.P.C.

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Learned counsel for the applicant submitted that the impugned order dated 30.3.2022 is illegal as it is cryptic one and trial court suo motu summoned PW-1 without assigning proper reason. He further submitted that the law is settled in respect of summoning of witness for reexamination under Section 311 Cr.P.C. that no such summoning can be passed only to fulfil the lacuna of the either side. Learned counsel further submitted that the sole ground which was mentioned in the impugned order dated 30.3.2022 is that as in respect of the suicide note, no examination was done from PW-1, therefore, it is necessary for just decision of the case to examine PW-1 (informant)-opposite party No. 2 in respect of suicide note. Learned Senior Counsel placed reliance in a judgement of Apex Court, Rajaram Prasad Yadav Vs. State of Bihar & another on 4.7.2013 in SLP (Crl. No. 24000 of 2011) and submitted that in that case Apex Court issued guidelines to summon a witness under Section 311 Cr.P.C. and while passing the impugned order dated 30.3.2022, trial court failed to follow those guidelines. He further submitted that as in the statement

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of PW-1 (opposite party No. 2) and in the statement of PW-6 (Investigating Officer), the existence of suicide note has already been admitted and the recovery memo in respect of suicide note has been proved in the evidence and already exhibited, therefore, there is no need to further examination of any witness in respect of suicide note including PW-1 (opposite party No. 2).

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Per contra, learned AAG assisted by Shri Arvind Kumar submitted that the impugned order dated 30.3.2022, is a well reasoned order and while passing it, trial court clearly observed that as in respect of suicide note, no examination of PW-1 was conducted, therefore, in the interest of justice to arrive at just decision of the case, it is necessary to re-examine (PW-1) Anant Prakash Agarwalopposite party No. 2. Learned AAG further submitted that from the perusal of the impugned order, it appears that suicide note is on record since the year 2019 and as PW1 i. e. opposite party no. 2 was examined in the year 2018, therefore, suicide note which was written by his daughter could not be proved in the Court and, therefore, for just decision of the case, it is necessary to re-examine him as the present matter is of Section 306 IPC and therefore, there is no illegality in the impugned order.

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I have heard both the parties and perused the impugned order dated 30.3.2022.

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The present case is of the Section 306 IPC. The impugned order dated 30.3.2022 shows that the suicide note written by the deceased was placed on record on 12.3.2019 after the statements of all the witnesses. Perusal of certified copy of the statement of PW-1(Anant Prakash-opposite party no. 2) shows that the suicide note was recovered during the course of investigation and in this regard, recovery memo was also prepared which was duly proved as Exhibit Ka-3 and the statement of the PW1 was recorded in the year 2019. As the suicide note could only be placed on record in the year 2019 as mentioned by the trial court in order dated 30.3.2022, therefore, there was no occasion for the PW-1 to prove the suicide note of the deceased. From the perusal of the record and the impugned order dated 30.3.2022, it appears that although suicide note is on record since the year 2019 but neither it could be proved nor exhibited before the trial court by any of the witnesses who examined till date including PW-1, Ananat Prakash (opposite party No. 2) and PW-6 (Investigating Officer). It appears that although trial court did not note the fact in

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order dated 30.3.2022 that suicide note of the deceased is although on record but could not till date be proved or exhibited by any of the witnesses and as the case is of Section 306 IPC, therefore, for just decision of the case, it is necessary to prove the suicide note of the deceased but instead of noting this fact trial court observed that PW1 could not be examined in respect of suicide note and his examination is necessary to arrive at just decision of the case.

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The Apex Court in case of Rajaram Yadav (supra) in paragraph 23 observed as follows:-

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"23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

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a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 Cr.P.C. is noted by the Court for a just decision of a case?

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b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgement should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

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c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.

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d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

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e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

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f) The wide discretionary power should be exercised judiciously and not arbitrarily.

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g) The Court must satisfy itself that it was in every respect 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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h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

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i) The Court arrives at the conclusion that additional evidence is

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necessary, not because it would be impossible to pronounce the judgement without it, but because there would be a failure of justice without such evidence being considered.

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j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a 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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k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

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l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

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m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

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n) The power 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 care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. "

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Perusal of paragraph-23(d) of Rajaram Yadav (supra) shows that the power under Section 311 Cr.P.C. should be exercised with object to find out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. As already observed the case in hand is of Section 306 IPC in which suicide note of the deceased was collected by the Investigating Officer during investigating and that suicide note is also on record but it could not be proved and exhibited and, therefore, to find out the truth, it is necessary to prove the suicide note in a proper way so it may be read in evidence and Court may arrive at just decision of the case. Perusal of impugned order shows that the intention of the trial court was not to fulfil the lacuna but to prove the suicide note written by deceased-daughter of opposite party No. 2(PW-1) as suicide note is material piece of evidence

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which will lead the trial court to arrive at just decision of the case.

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In view thereof, I find no illegality in the impugned order dated 30.3.2022 on the basis of which it can be quashed.

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Accordingly, the present application u/s 482 Cr.P.C. is rejected .

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Order Date :- 9.5.2022 Ankita

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Digitally signed by ANKITA SRIVASTAVA Date: 2022.05.20 09:47:34 IST Reason: Location: High Court of Judicature at Allahabad

Smt Sangeeta Agarawal v. State of U.P. and Another

Case brief

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Smt Sangeeta Agarawal v. State of U.P. and Another

Case brief

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