The High Court dismissed a criminal revision challenging the rejection of an application to recall PW-1 for cross-examination. The Court held the trial court did not commit illegality as the accused already had ample opportunity, and the new application lacked merit.
The criminal revision is dismissed; the trial court's order dated 21.02.2024 is upheld.
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Neutral Citation No. - 2024:AHC:121850
Court No. - 84
Case :- CRIMINAL REVISION No. - 1246 of 2024
Revisionist :- Danish Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Madan Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
1- Despite service of notice upon opposite party no.2, no one has put in appearance on her behalf.
2- Heard learned counsel for the revisionist, learned Additional Government Advocate for the State and perused the materials available on record.
3- The present Criminal Revision under Section 397/401 Cr.P.C. has been preferred by the revisionist against the judgment and order dated 21.02.2024 passed by learned Additional Session Judge, Court No. 3, Aligarh in Session Trial No. 2574 of 2022 (State Vs. Danish) arising out of Case Crime No. 398 of 2022, under Sections 452, 376, 506 I.P.C., Police Station Roravar, District Aligarh whereby application of the revisionist under Section 311 Cr.P.C. to recall PW-1/Smt. Sumran for cross-examination has been rejected.
4- The brief facts of the case which are required to be stated are that the revisionist-Danish is accused and is facing trial in this case. Statement of PW-1 before the trial Court was recorded on 02.08.2023 and 03.08.2023. Thereafter, the victim was again summoned vide order dated 11.01.2024 on the application under Section 311 Cr.P.C. for further cross-examination on the issue related to her statement under Section 164 Cr.P.C. As such, on 07.02.2024, statement of victim (PW-1) was again recorded and opportunity of cross-examination was also given to the accused-revisionist. Thereafter, on 17.02.2024, accused-revisionist moved an application under Section 311 Cr.P.C. to recall PW1/Smt. Sumran again for further cross-examination,
which has been rejected by the trial court vide impugned order dated 21.02.2024.
5- The main substratum of argument of learned counsel for the revisionist is that the opportunity to cross-examine the PW-1 has wrongly been refused by the trial Court and the application dated 17.02.2024 of the revisionist has been illegally rejected, whereas, for fair trial, it is necessary to recall PW-1 for cross-examination. The findings recorded by the trial court while rejecting the application dated 17.02.2024 is perverse and same is liable to be set aside.
6- On the other hand, learned A.G.A. vehemently opposed the submissions of learned counsel for the revisionist by contending that on 07.02.2024, the victim/PW-1 was again appeared before the trial Court and she was cross-examined by the accused and the accused has been given ample opportunity for cross-examination. Hence, the trial court has committed no illegality in rejecting the said application of the revisionist.
7- Having heard the submission of learned counsel for the parties and perusing the record, I find that the trial court, while rejecting the application dated 17.02.2024 of the revisionist, has observed that the victim/PW-1 has appeared before the trial Court and cross-examination has been done by the accused and questions related to mobile-phone, etc. were also asked, which shows that the accused has been given ample opportunity of cross-examining the victim/PW-1.
8- In light of facts and materials on record, I also find that the contents of application dated 17.02.2024 are vague and general in nature. The very use of the words in Section 311 Cr.P.C., such as 'any court', 'at any stage' or 'of any inquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of this Court in any way. However, very width requires corresponding caution that the discretionary
power should be invoked as the exigencies of justice require and exercised judicially with circumspection consistently with the provisions of the Code. The object underlying in Section 311 of Cr.P.C. is that there may not be failure of justice on account of either party in bringing valuable evidence on record of living ambiguity in the statement of witnesses examined from either side. Determinative factor is whether it is essential for the just decision of the case or not. It is also settled that the power under Section 311 Cr.P.C. could not be invoked by the Court to fill up lacuna unless the Court is satisfied that in the interest of justice, it is necessary to invoke to said extraordinary power.
9- Under the facts of the case, this Court is of the view that presumption, observations and findings recorded by the trial Court in rejecting the application under Section 311 Cr.P.C. are fully sustainable. The trial Court has committed no illegality in rejecting the application of the revisionist. There appears no abuse of the process of the Court also. I do not find manifest error of law or perversity in the impugned order dated 21.02.2024 passed by the trial court, hence the same is impeccable and no interference is warranted.
10- The instant criminal revision lacks merit, and is accordingly, dismissed.
11- Office is directed to communicate this order to the concerned court below within a week.
Order Date :- 30.7.2024 Shubham
Digitally signed by :- SHUBHAM KUMAR AGRAHARI High Court of Judicature at Allahabad
3 issues framed by the court
Whether there was manifest error of law or perversity in the trial court's rejection of the application to recall PW-1 for cross-examination under Section 311 Cr.P.C.
Whether the accused was given ample opportunity to cross-examine the victim previously.
Whether the application for recall of witness was vague and general in nature.
3 provisions across 1 enactments
Danish
State of U.P.
Sanjay Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
