Dismissed

Dinesh Srivatav @ Dinesh Kumar and Others v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Civil Secrett. Lko. and Another

Allahabad HC3 May 2023/4423/2023

Case brief

AI extract

What is this about?

This High Court dismissed an application seeking to quash the trial court's order summoning a witness named in police statement but not in the charge sheet. The court held the trial court's action under Section 311 Cr.P.C. was valid, lawful, and necessary for the just decision of the case.

What did the court decide?

The prayer for quashing the impugned orders dated 29.03.2023 and 11.04.2023 was refused and the application dismissed.

Dinesh Srivatav @ Dinesh Kumar and Others… — Civil Procedure and Limitation | Allahabad HC (2023)

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Court No. - 15

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Case :- APPLICATION U/S 482 No. - 4423 of 2023

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Applicant :- Dinesh Srivatav @ Dinesh Kumar And Others

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Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Civil Secrett. Lko. And Another

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Counsel for Applicant :- Vineet Kumar Yadav,Arun Kumar

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Counsel for Opposite Party :- G.A.

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Hon'ble Ajai Kumar Srivastava-I,J.

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1. Heard Sri Vineet Kumar Yadav, learned counsel for the applicants, Sri Balram, learned A.G.A. for the State and perused the entire record.

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2. The instant application has been filed by the applicants for quashing the impugned orders dated 29.03.2023 & 11.04.2023 passed by District & Session Judge IIIrd, District Ambedkar Nagar in Session Trial No.109/2021, arising out of Case Crime No.06/2021, under Sections 302 & 120B I.P.C., Police Station Maharua, District Ambedkar Nagar.

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3. Brief facts of the present case are that initially a first information report came to be lodged against unknown person under Section 302 I.P.C. Upon conclusion of investigation, charge sheet came to be submitted against the present applicants under Sections 302 & 120B I.P.C. The learned trial court committed the matter to the Court of Session as it was exclusively triable by the Court of Session. During the course of trial, the prosecution moved an application no.21B, under Section 311 Cr.P.C. to

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summon Sandeep Ojha as a witness as PW-4, Manju Mani Mishra, who had already been examined, had mentioned in his statement recorded under Section 161 of the Cr.P.C. that Sandeep Ojha was also present with him on the date of occurrence. As a witness, Sandeep Ojha has not been mentioned in the charge sheet, it was prayed that he be summoned to be examined as a prosecution witness in exercise of its power under Section 311 Cr.P.C. The learned trial court, vide its order dated 29.03.2023, allowed the aforesaid application and directed the witness, Sandeep Ojha, to be summoned.

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4. Aggrieved by the aforesaid order dated 29.03.2023, whereby the learned trial Court has summoned witness, Sandeep Ojha, the instant application has been preferred by the present accused/applicants.

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5. Learned counsel for the applicants has submitted that as Sandeep Ojha was not named in the charge sheet as a witness, therefore, he could not have been summoned by learned trial Court in exercise of its power under Section 311 Cr.P.C. He has also submitted that Sandeep Ojha happens to be a close relative of the first informant, therefore, he is being summoned to lend assistance to the prosecution. He has also submitted with vehemence that while passing the impugned order dated 29.03.2023, no opportunity of hearing was afforded to the present accused/ applicants. Therefore, the impugned order dated 29.03.2023

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is an abuse of process of this Court and is patently illegal. He, thus, prays that the impugned order 29.03.2023 deserves to be quashed.

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6. Per contra, learned A.G.A. for the State has opposed the prayer by submitting that the learned trial Court vide order dated 29.03.2023 has rightly summoned witness, Sandeep Ojha in exercise of its power under Section 311 Cr.P.C. It has also been submitted that there is no bar on summoning any witness who has not been mentioned in the charge sheet, provided that the court finds his testimony to be necessary for just decision of the case. He therefore, submits that the instant applicant lacks merit and deserves to be dismissed.

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7. Heaving heard learned counsel for the applicants, learned A.G.A. for the State and upon perusal of the entire record, it transpires that initially a first information report came to be lodged against unknown person under Section 302 I.P.C. Upon conclusion of investigation, charge sheet came to be submitted against the present applicants under Sections 302 & 120B I.P.C. The learned trial court committed the matter to the Court of Session as it was exclusively triable by the Court of Session. During the course of trial, the prosecution moved an application no.21B, under Section 311 Cr.P.C. to summon Sandeep Ojha as a witness as PW-4, Manju Mani Mishra, who had already been examined, had mentioned in his statement recorded under Section 161 of the

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Cr.P.C. that Sandeep Ojha was present with him on the date of occurrence. As witness, Sandeep Ojha had not been mentioned in the charge sheet as a witness, it was prayed that he be summoned by the learned trial court to be examined as a prosecution witness in exercise of its power under Section 311 Cr.P.C. The learned trial court, vide its order dated 29.03.2023, allowed the aforesaid application and directed the witness, Sandeep Ojha, to be summoned.

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8. From a bare perusal of impugned order 29.03.2023, it transpires that while disposing of the aforesaid applicant no.21B, under Section 311 Cr.P.C., vide impugned order dated 29.03.2023, opportunity of hearing was afforded to the defence i.e. present applicants, which is mentioned in para no.2 of the impugned order dated 29.03.2023.

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9. It is trite that any person, who has not been named in the charge sheet as a witness, can be summoned as a prosecution witness.

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10. Section 311 Cr.P.C. being germane to the controversy is quoted herein below :

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"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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(emphasis supplied)

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11. From a perusal of impugned order dated 29.03.2023, this Court finds that learned trial Court, after adverting to the entire facts and circumstances of this case, has recorded a categorical finding of fact that examination of witness, Sandeep Ojha is necessary for just decision of this Case and therefore, has directed to summon him. Its an order which is discretionary in nature and the same cannot be faulted with in the light of law laid down by Hon'ble Supreme Court in V. N. Patil vs. K. Niranjan Kumar and others, reported in (2021) 3 SCC 661 and Varsha Garg vs. State of Madhya Pradesh and others reported in 2022 SCC OnLine SC 986.

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12. Accordingly, the prayer for quashing the impugned orders dated 29.03.2023 & 11.04.2023 is refused as this Court does not find any illegality, impropriety and incorrectness in the same. There is no abuse of court's process either.

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13. Thus, having regard to the aforesaid overall discussion, the instant application under Section 482 Cr.P.C. lacks merit which deserves to be dismissed and the same is hereby dismissed .

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Order Date :- 3.5.2023 A.Dewal

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Digitally signed by :- ASHISH DEWAL High Court of Judicature at Allahabad, Lucknow Bench

Dinesh Srivatav @ Dinesh Kumar and Others v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Civil Secrett. Lko. and Another

Case brief

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Dinesh Srivatav @ Dinesh Kumar and Others v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Civil Secrett. Lko. and Another

Case brief

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