Dismissed

Kunwar Pal Kardam v. State of U.P. and Another

Allahabad HC11 Oct 2023CRLR/4926/2023

Case brief

AI extract

What is this about?

In this criminal revision, the High Court of Judicature at Allahabad examined the rejection of an application under Section 311 CrPC seeking recall of a witness. The court found that due to a ten-year delay and the witness being examined at length, recall was not essential for the just decision of the case and dismissed the revision.

What did the court decide?

The criminal revision against the order rejecting the application for recall of PW 1 is dismissed.

Kunwar Pal Kardam Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:196060

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Court No. - 78

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Case :- CRIMINAL REVISION No. - 4926 of 2023 Revisionist :- Kunwar Pal Kardam Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Umesh Singh,Uday Bhan Counsel for Opposite Party :- G.A.

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Hon'ble Raj Beer Singh,J.

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Heard learned counsel for the revisionist and learned A.G.A. for the State.

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This criminal revision has been preferred against the order dated 31.07.2023, passed by learned Special Judge (Prevention of Corruption Act)/(V.B.U.P.S.E.B.)/Additional Session Judge, Meerut, in Criminal Case No. 20 of 2006 (State vs. Kunwar Pal Kardam), Case Crime No. 325 of 2006, under Section 7/13(1)D and 13(2) Prevention of Corruption Act, P.S. Nauchandi, District Meerut, whereby, the application filed by the revisionist/accused under Section 311 Cr.P.C. has been rejected.

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Learned counsel for the revisionist submitted that the impugned order is against the facts and law and thus, liable to be set aside. The revisionist is accused in the aforesaid case. In crossexamination of PW-1, certain important questions could not be asked and thus, an application under Section 311 CrPC was moved before the trial court. It was submitted that the further crossexamination of PW-1 is necessary for the just decision of the case and thus, trial court committed error by rejecting the application of revisionist. Learned counsel submitted that the impugned order is against facts and law and thus, it may be set aside.

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Learned AGA has opposed the application and submitted that there is no illegality or perversity in the impugned order. The case is pending since the year 2006. The statement of PW-1 has been recorded in the year 2013 and now the case is at the stage of final arguments before the trial court. Perusal of impugned report shows that PW-1 was cross-examined at length.

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I have considered the rival submissions and perused the record.

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Before proceeding further, it would be apt to peruse the provisions of Section 311 CrPC, which reads as under:

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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 examine any person already examined who are expected to be able to throw light upon the matter in dispute."

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The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order.

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In Vijay Kumar v.State of U.P. [Vijay Kumar v.State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240] , Hon'ble Supreme Court while explaining scope and ambit of Section 311 has held as under:

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"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 [CrPC] 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."

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In Zahira Habibullah Sheikh (5) v. State of Gujarat [Zahira

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Habibullah Sheikh (5) v.State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] , Hon'ble Supreme Court has considered the concept underlying under Section 311 Cr.P.C. as under:

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"27.The object underlying Section 311 of the Code 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.

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The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry.

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In Section 311 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 whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."

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In State (NCT of Delhi) v. Shiv Kumar Yadav [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510], it was held thus:

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"Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall.

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Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined."

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The delay in filing the application is one of the important factors which has to be explained in the application. In Umar Mohammad v. State of Rajasthan [Umar Mohammad v.State of Rajasthan , (2007) 14 SCC 711 : (2009) 3 SCC (Cri) 244] , the Court has held as under: (SCC p. 719, para 38)

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"38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention.

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It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself a pointer to the fact that he had been won over.

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It is absurd to contend that he, after a period of four years and that too after his examinationin- chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed."

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In Manju Devi v State of Rajasthan , (2019) 6 SCC 203 , the Court emphasized that a discretionary power like Section 311 CrPC is to enable the Court to keep the record straight and to clear any ambiguity regarding the evidence, whilst also ensuring no prejudice is caused to anyone.

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Keeping in view the aforesaid position of law in view, in the instant matter, it may be seen that the case is pending before the trial court since the year 2006. Statement of PW-1 Haqim Ali was recorded in the year 2013 and now, after completion of entire evidence, the case is fixed for the final hearing before the trial court. While the case was pending for final hearing, the revisionist accused has moved an application under Section 311 CrPC, alleging that his earlier counsel could not ask from PW-1 Haqim Ali as to whether the S.D.M. or Tehsildar or Revenue Inspector or any other officer has passed any order, noting or endorsement relating to the issue to de facto complainant/informant Haqim Ali and that the revisionist has been falsely implicated in this case. That the application was rejected by the trial court vide impugned order dated 31.07.2023.

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In view of aforesaid position of law, it is apparent that Section 311 CrPC is in two parts. The first part is discretionary, where the court may, at any stage, summon any person as a witness or recall or re-examine any person, already examined. The second part is obligatory and it provides that court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential for just decision of the case. After referring to the cross-examination of PW-1 Haqim Ali, it cannot be said that recalling and re-examination of PW-2 Haqim Ali is necessary for

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just decision of the case. PW-1 Haqim Ali has already been examined at length. Further, there is long and undue delay in filing the application under Section 311 CrPC. As stated above, statement of PW-1 Haqim Ali was recorded in the year 2013 and the application under Section 311 CrPC has been moved after 10 years of the same. The contention that revisionist/accused has engaged a new counsel, cannot be a ground to recall a witness. Further, delay in filing the application under Section 311 CrPC is also an important factor as held in case of Umar Mohammad v. State of Rajasthan (supra). Though, the trial court has not made any such observation whether the recalling or re-examination of PW-1 Haqim Ali is essential for just decision of the case or not, however, in view of aforesaid facts and perusing the crossexamination of PW-1 Haqim Ali, coupled with long delay in filing the application, it cannot be said that the recalling or reexamination of PW-1 Haqim Ali is essential for the just decision of the case. It appears that the application under Section 311 CrPC has been moved with intention to delay the proceedings of the trial.

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In view of aforesaid, it is clear that there is no material illegality, perversity or error of jurisdiction in the impugned order, so far it relates to the rejection of application of the revisionist for recalling of PW-1 Haqim Ali. The revision lacks merit and thus, liable to be dismissed.

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The criminal revision is dismissed .

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Order Date :- 11.10.2023 Suraj

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Digitally signed by :- SURAJ YADAV High Court of Judicature at Allahabad

Kunwar Pal Kardam v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Kunwar Pal Kardam v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

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