Dismissed

Subhash Urf Lala and Another v. State of U.P. and Another

Allahabad HC11 Sept 2024CRLR/4358/2024

Case brief

AI extract

What is this about?

High Court Court No. 84 dismissed a criminal revision preferring to challenge the rejection of an application under Section 311 Cr.P.C. for recalling prosecution witnesses. The Court held that no cogent reason existed for the delay in cross-examination and Section 311 cannot be used to fill prosecution lacunae.

What did the court decide?

Criminal Revision No. 4358 of 2024 was dismissed as it lacked merit; no illegality found in the impugned order.

Subhash Urf Lala and Another vs State of… — Civil Procedure and Limitation | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:148747

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Court No. - 84

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Case :- CRIMINAL REVISION No. - 4358 of 2024

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Revisionist :- Subhash Urf Lala And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Narendra Kumar,Rabindra Bahadur Singh Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Singh,J.

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Heard learned counsel for the revisionists, learned Additional Government Advocate for the State of U.P. and perused the record.

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The instant criminal revision under Section 379/401 Cr.P.C. has been preferred by the revisionists against the order dated 31.05.2024 passed by learned Additional Sessions Judge, Court No. 12, Moradabad in 1561 of 2022 (State Vs. Subhash and others) arising out of Case Crime No. 112 of 2020, under Section 302/34 I.P.C., Police Station Bhojpur, District Moradabad, whereby the application No. 20B under Section 311 Cr.P.C., moved by the revisionists for recalling of PWs 2, 3, 5 and 6 has been rejected.

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The main substratum of argument of learned counsel for the revisionists is that earlier counsel for the revisionists did not cross-examine the witnesses, therefore, the revisionists have engaged a new counsel Mr. Surjit Singh Yadav for cross-examination. Thereafter, an application under Section 311 Cr.P.C. was moved on 29.05.2024, but the same has been illegally rejected by the trial court depriving them from their right of cross-examination.

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On the other hand, learned Additional Government Advocate vehemently opposed by contending that despite giving an ample opportunity to the accusedrevisionists, no cross-examination was done from their side. Thereafter, the application under Section 311 Cr.P.C. has been preferred by the revisionists after much delay on 29.05.2024, which is not sustainable. There is no illegality in the impugned order, hence the instant criminal revision is liable to

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be rejected.

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Having heard the submission of learned counsel for the parties and perusing the record, I find that it is not in dispute that examination-in-chief of PWs 1, 2, 3, 4, 5 and 6 have been recorded on 18.04.2023, 06.10.2023, 04.12.2023, 20.12.2023, 16.03.2024 and 04.04.2024 respectively and repeated opportunities were given to the counsel for the revisionists for cross-examination of the aforesaid prosecution witnesses, but no cross-examination was done. Therefore, trial court having no option left closed the opportunity of cross-examination and the said order has also not been challenged by the revisionists. Even no application for recall of said order of the trial court was moved, whereby opportunity of cross-examination was closed. In the application under Section 311 Cr.P.C. dated 29.05.2024, no cogent reason has been mentioned for not cross-examining the witnesses. It is also well settled in the recent judgment of the Hon'ble Supreme Court in the case of Neha Begum & Ors. vs. State of Assam & Anr., in Petition(s) for Special Leave to Appeal (Crl.) No(s). 3910 of 2024 , decided on 02.09.2024, that application under Section 311 Cr.P.C. cannot be moved in order to fill up the lacuna.

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In light of facts and materials on record, I also find that the contents of application dated of the revisionist under Section 311 Cr.P.C. 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

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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.

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In view of the above, I do not find any illegality in the impugned order dated 31.05.2024.

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The criminal revision lacks merit, and is accordingly, dismissed .

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Office is directed to send a copy of this order to the concerned trial court for necessary information and compliance.

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Order Date :- 11.9.2024 Kashifa

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Digitally signed by :- KASHIFA High Court of Judicature at Allahabad

Subhash Urf Lala and Another v. State of U.P. and Another

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Subhash Urf Lala and Another v. State of U.P. and Another

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