Partly allowed

Prevendra and 2 Others v. State of U.P. and Another

Allahabad HC4 Jul 2024A482/19245/2024

Case brief

AI extract

What is this about?

The High Court allowed the application under Section 482 CrPC solely regarding the rejection of a Section 311 CrPC prayer. It set aside the order refusing to recall Prosecution Witness PW-10, directing the trial court to fix a date for cross-examination, while dismissing the challenge to an earlier order denying summon of documents under Section 91 CrPC.

What did the court decide?

Set aside the order dated 7.5.2024 rejecting the recall prayer. Directed the Trial Court to summon PW-10 R.P. Sahi within five weeks for cross-examination.

Prevendra and 2 Others Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:109752

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Court No. - 76

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Case :- APPLICATION U/S 482 No. - 19245 of 2024

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Applicant :- Prevendra And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Kumar Verma,Gambhir Singh 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 applicant and learned AGA for the State and perused the record.

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By means of this application under Section 482 CrPC the applicants have challenged the order dated 7.5.2024, passed by Additional Sessions Judge, Court No. 16, Meerut, in S. T. No. 793 of 2022 (State Versus Prvendra and others), under Sections-498-A, 323, 504, 506, 304-B IPC and Sections-3/4 of D. P. Act, Crime No. 177 of 2022, Police Station-Jani, District-Meerut, whereby the application filed on behalf applicants / accused under Section 311 CrPC for recalling of PW 10 R. P. Sahi for cross-examination has been rejected. Another order dated 13.12.2023 passed by the aforesaid Court in the said case is also being challenged, whereby application under Section 91 CrPC for summoning of certain medical documents has been rejected.

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So far as the impugned order dated 13.12.2023 is concerned, it was submitted by learned counsel for the applicants that the said order is against the facts and law and thus, is liable to be set aside. An application was moved on behalf of the applicants-accused to summon the medical documents regrading treatment of deceased from Reeta Multi Specialty Hospital and Trauma Centre, Meerut but that application has been rejected by the trial Court in an arbitrary manner.

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In rebuttal learned AGA has submitted that the said documents are not part of record and if the applicants want summoning of any

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document in their defence, they can get the same summoned at the stage of defence evidence and that there is no illegality or perversity in the impugned order dated 13.12.2023.

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I have considered the rival submissions and perused the record.

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The provisions under Section 91 of Cr.P.C provide for production of documents or other things if the same is necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under Cr.P.C. It does not expressly provide as to who can invoke this provision, however, it implies that it can be invoked by the Court or the officer in-charge of the police station. The satisfaction regarding the necessity or the desirability of the Court or the police is sine qua non for invoking this provision. The production of document or other things is to be made before the Court if directed by the Court or before the officer if directed by the police officer. Therefore, the production of any document or a thing can be directed by the Court after being satisfied such production is necessary and desirable for the purpose of proper lawful conduction of investigation, inquiry, trial or other proceeding. The powers conferred under Section 91 Cr.P.C. are enabling in nature aimed at arming the Court or any officer in charge of a Police Station concerned to enforce and to ensure the production of any document or other things necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under the Code, by issuing a summons or a written order to those in possession of such material. The language of Section 91 Cr.P.C. would, no doubt, indicate the width of the powers to be unlimited but the in-built limitation inherent therein takes it colour and shape from the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object.

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In case of State of Orissa Vs. Debendra Nath Padhy AIR 2005 SC 359, the Court held that;

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"any document or other thing envisaged under Section 91, can be ordered to be produced on findings that the same is necessary or desirable for the purpose of investigation, enquiry, trial or other proceedings under the Code and fore-most requirement of the section is about document being necessary or desirable and the necessity or desirable would have to be seen with reference to the stage when a prayer is made for production" and further held that, "If any document is necessary or desirable for defence of accused, the question of invoking Section 91 at the initial stage of framing of the charge would not arise since defence of the accused is not relevant at that stage."

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Thus, it was held that "so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. In the instant matter since the case is at the state of prosecution evidence, thus, it cannot be said that impugned order is suffering from any material illegality or perversity and therefore, no interference is called for in the order dated 13.12.2023.

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So far as the impugned order dated 7.5.2024 is concerned, it has been submitted by learned counsel for the applicants that the applicants are accused in the aforesaid case. On 13.3.2024 the investigating officer PW 10 R. P. Sahi has appeared for his evidence and his examination-in-chief was recorded but the counsel for accused persons could not cross-examine the said witness as he was busy in another Court. The trial Court after granting opportunity for cross-examination, has closed the statement of PW 10. Learned counsel submitted that the applicants have never delayed the proceedings and in fact on 13.3.2024 PW 10 could not be cross examined as their counsel was busy in another Court. It was submitted that in view of the these facts and circumstances of the case, it was necessary that PW 10 must have been recalled for cross examination but the application filed by the applicants under Section 311 CrPC has been rejected vide order dated 7.5.2024.

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Per contra, learned AGA submitted that there is no illegality or perversity in the impugned order dated 7.5.2024.

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It may be seen that Section - 311 Cr.PC. is manifestly in two parts, in the first part word used is "may", while in second part word "shall" has been used. Thus, first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. Whereas the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. It is duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice. The object underlying Section -311 Cr.P.C. 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 determining factor is whether it is essential to the just decision of the case. 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. In Section - 311 Cr.P.C. the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". Thus, this section confers a very wide power on the court on summoning witnesses but 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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Coming to the facts of the instant matter, it appears that on 13.3.2024 the investigating officer R. P. Sahi has appeared before the

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trial court for his evidence. The defence counsel has sought for adjournment on the ground that he is busy in another Court but the trial court rejected the prayer of adjournment and statement of investigating officer R. P. Sahi was recorded as P.W.-10 and thereby no cross-examination of said witness could take place. Later on, the applicant / accused has moved an application under Section 311 Cr.P.C. for recalling of P.W.-10 R. P. Sahi for his cross-examination but the said application was rejected by the trial court vide impugned order 07.05.2024. Here it would be pertinent to mention that crossexamination of a prosecution witness is an important right of the accused, where such witness has deposed against him. The investigating officer is considered an important witness. The accused can not be deprived from his right of cross-examination of a prosecution witness merely on the basis of some delay or technicalities. Considering all facts, to afford opportunity of crossexamination to the accused persons, the summoning of P.W.-10 R. P. Sahi appears necessary for just decision of the case. That being the position, the rejection of the prayer of the accused applicant to summon P.W.-10 by the trial court was not proper and in the background facts of the case, the trial court ought to have permitted the prayer of the applicant accused.

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In view of aforesaid facts, it is apparent that impugned order dated 7.5.2024 is not in accordance with law and thus, the same is liable to be set aside. Accordingly, the impugned order dated 07.05.2024 is set aside. The Trial Court shall fix a date within five weeks and call P.W.-10 R. P. Sahi and accord opportunity of cross-examination to the accused persons and thereafter proceed with the trial.

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The application under section - 482 Cr.P.C. is disposed of in above terms.

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Order Date :- 5.7.2024 / HR

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Digitally signed by :- HEMANT RANJAN High Court of Judicature at Allahabad

Prevendra and 2 Others v. State of U.P. and Another

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Prevendra and 2 Others v. State of U.P. and Another

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