The High Court dismissed an application under Section 482 Cr.P.C. challenging the rejection of a Section 311 Cr.P.C. application for recalling a witness. The court held that no case for extraordinary powers was made out as the witness had previously failed to appear and the re-examination was not essential for a just decision.
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Neutral Citation No. - 2024:AHC:150223
Court No. - 76
Case :- APPLICATION U/S 482 No. - 30923 of 2024
Applicant :- Gayatri Opposite Party :- State Of Up And 2 Others Counsel for Applicant :- Raghuvansh Chandra,Ram Jee Saxena Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
been rejected by the trial court vide impugned order dated 19.05.2023. Learned counsel submitted that impugned order is against law and thus liable to be set aside. In the interest of justice, the re-examination of informant / P.W.-1 was necessary. In support of this contention, learned counsel has placed reliance upon case of State Represented by the Deputy Superintendent of Police vs. Tr. N. Seenivasagan reported in AIR 2021 SC (Criminal) 1268 :: AIRONLINE 2021 SC 128 .
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.
8. In case of State Represented by the Deputy Superintendent of Police (supra) , in paragraph no.15, the Hon'ble Apex Court has held as under :-
"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 CrPC 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. The power conferred under Section 311 CrPC 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. 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." (emphasis in original)"
examination of P.W.-1 is necessary for just decision of the case or to meet the ends of justice. It may also be stated that this application under Section - 482 Cr.P.C. has been filed after about one year of passing of the impugned order. Considering the entire facts, no case for invoking extraordinary powers under Section - 482 Cr.P.C. is made out. The application under Section 482 Cr.P.C. lacks merit and thus, liable to be dismissed.
Order Date :- 13.9.2024 S Rawat
Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad
1 issue framed by the court
Whether the High Court should exercise its powers under Section 482 Cr.P.C. to set aside the trial court's order rejecting a Section 311 application for recalling a witness?
Colour shows how this judgement treated each authority
State Represented by the Deputy Superintendent of Police vs. Tr. N. SeenivasaganReferred¶15
AIR 2021 SC (Criminal) 1268 :: AIRONLINE 2021 SC 128 · Who else cites this
2 provisions across 1 enactments
Gayatri
State Of Up And 2 Others
Raj Beer Singh
As recorded by the court registry
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