Accused facing trial sought recall of PW-1 for further cross-examination under Section 311 CrPC after his counsel delayed and then adjourned despite court time remaining. The High Court upheld the trial court's rejection, finding no perversity or illegality, and dismissed the revision.
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Neutral Citation No. - 2024:AHC:124988
Court No. - 84
Case :- CRIMINAL REVISION No. - 2762 of 2024
Revisionist :- Rakesh Nishad Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rajan Tripathi,Suraj Singh Chauhan Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
1- Heard learned counsel for the revisionist, learned Additional Government Advocate for the State and perused the materials available on record.
2- The present Criminal Revision under Section 397/401 Cr.P.C. has been preferred by the revisionist against the order dated 07.03.2024 passed by learned Additional District and Session Judge, Court No. 18, Kanpur Nagar in Session Trial No. 149 of 2023 (State Vs. Rakesh Nishad), Police Station Gwaltoli, District Kanpur Nagar whereby application dated 04.07.2023 under Section 311 Cr.P.C. of the revisionist to recall PW-1/Smt. Rachna for crossexamination has been rejected.
3- The brief facts of the case which are required to be stated are that the revisionist-Rakesh Nishad is accused and is facing trial. Statement of PW-1/Smt. Rachna before the trial Court was recorded on 22.06.2023 but counsel for the accused-revisionist did not appear to cross-examine her, therefore, case was fixed for 23.06.2023 for her cross-examination. On 23.06.2023, victim was present in the Court room from 10:30 A.M. Case was called out but counsel for the accused-revisionist came at 02:00 P.M. The crossexamination of PW-1 was done from 02:00 P.M. to 03:30 P.M. and further time to cross-examine PW-1 was sought by counsel for the revisionist whereas Court's time was left. Keeping in view of the nonsensitive conduct of counsel for the accusedrevisionist, opportunity of further cross-examination was closed. Thereafter, on 04.07.2023, accusedrevisionist moved an application under Section 311 Cr.P.C. to recall PW-1/Smt. Rachna again for further
cross-examination, which has been rejected by the trial court vide impugned order dated 07.03.2024.
4- The main substratum of argument of learned counsel for the revisionist is that the opportunity to cross-examine the victim/PW-1 has wrongly been refused by the trial Court and the application dated 04.07.2023 of the revisionist has been illegally rejected, whereas, for just decision, it is necessary to recall victim/PW-1for cross-examination. The findings recorded by the trial court while rejecting the application dated 04.07.2023 is perverse and same is liable to be set aside.
5- On the other hand, learned A.G.A. vehemently opposed the submissions of learned counsel for the revisionist by contending that on 23.06.2023, the victim/PW-1 was appeared before the trial Court and she was cross-examined by the counsel for accused at length, hence, the trial court has committed no illegality in rejecting the said application of the revisionist.
6- 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 04.07.2023 of the revisionist, has observed that on 22.06.2023, when examination-in-chief of the victim was recorded, counsel for the accused did not appear for cross-examination and no reason has been given for non-appearance of counsel for accused on 22.06.2023. However, in the interest of justice, further date was fixed on 23.06.2023 for cross-examination of PW-1. The victim was very much present in Court at 10:30 A.M. but no crossexamination was done before lunch break. Counsel for the accused-revisionist started cross-examination at 02:00 P.M. and concluded the same at 03:30 P.M. It has further been observed that though the Court's time was left but counsel for the accused sought adjournment.
7- 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.
8- 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 07.03.2024 passed by the trial court, hence the same is impeccable and no interference is warranted.
9- The instant criminal revision lacks merit, and is accordingly, dismissed.
10- Office is directed to communicate this order to the concerned court below within a week.
Order Date :- 2.8.2024 Shubham
Digitally signed by :- SHUBHAM KUMAR AGRAHARI High Court of Judicature at Allahabad
1 issue framed by the court
Should the trial court's rejection of the accused's Section 311 CrPC application to recall PW-1 for further cross-examination be set aside?
2 provisions across 1 enactments
Rakesh Nishad
State of U.P.
Sanjay Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
