Dismissed¶16

Mohd. Sharif v. State of U.P. Thru. Prin. Secy. Deptt. of Home Lko. and Another

Allahabad HC9 Apr 2025A482/2381/2025

Case brief

AI extract

What is this about?

Section 311 CrPC recall of witness refused; belated recall application filed 25.08.2023 after evidence of PW.1 closed 31.07.2019; no reasons assigned; abuse of process of law; reliance on Swapan Kumar Chattergee vs. C.B.I. (2019) 14 SCC 328 paras 12-13; Section 482 CrPC petition to quash order dated 28.01.2025 of FTC-1 Bahraich; Sessions Trial No.366/2015; Case Crime No.153/2015; Section 376 IPC; Police Station Khairighat; applicant Mohd. Sharif; Manish Kumar J.; High Court Allahabad Lucknow Bench; application dismissed on 9.4.2025.

What did the court decide?

It is an admitted case even for the applicant that the cross-examination of PW.1/prosecutrix was completed/closed on 31.07.2019 and the application under Section 311 Cr.P.C. was filed on 25.08.2023, i.e. after more than four years. ¶12

Mohd. Sharif Vs State of U.P. Thru. Prin. Secy. Deptt. of Home Lko. and Another — Allahabad HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶16

Issue for consideration

Whether the impugned order dated 28.01.2025 rejecting the applicant's application under Section 311 Cr.P.C. to recall PW.1 should be quashed / set aside. +1 more

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Court's answer

The court concerned had passed the impugned order assigning reasons after application of mind, rejecting the recall application on the ground that the applicant had mentioned no reason for recalling/re-examining PW.1.

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Ratio / Principle

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Key takeaways

It is not a fit case for recalling PW.1 for further cross-examination, as the applicant disclosed no reason for summoning/recalling PW.1 and moved the application on general grounds, which is an attempt to limitlessly stretch the proceedings of the criminal case.ratio¶13
A Section 311 Cr.P.C. application in which no reason is assigned and which is moved four years after closing of evidence/recording of PW.1's statement amounts to abuse of the process of law, as per the law settled by the Hon'ble Supreme Court in Swapan Kumar Chattergee vs. C.B.I. (paras 12–13 of which were quoted).ratio¶13

Detailed headnote1 paragraphs

Criminal — S. 482 Cr.P.C. — Quashing of trial-level order — S. 311 Cr.P.C. recall of witness. The applicant sought quashing of the order dated 28.01.2025 of the learned Additional Judge & Sessions Judge/F.T.C.-1, Bahraich (Sessions Trial No.366/2015, arising out of Case Crime No.153/2015, S. 376 I.P.C., P.S. Khairighat, District Bahraich) rejecting his application to recall PW.1 (prosecutrix) for further cross-examination. The High Court observed that PW.1's cross-examination was completed/closed on 31.07.2019 and the S. 311 application was filed on 25.08.2023, i.e. after more than four years, without disclosing any reason; the court below had acted with application of mind. Recalling PW.1 was unwarranted: a reason-less, four-year-late recall application is an attempt to limitlessly stretch the proceedings and amounts to abuse of the process of law, as per the law settled by the Hon'ble Supreme Court in Swapan Kumar Chattergee vs. C.B.I., (2019) 14 SCC 328 (whose paras 12–13 were quoted). Application dismissed (order dated 9.4.2025).

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Neutral Citation No. - 2025:AHC-LKO:19990

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Court No. - 14

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Case :- APPLICATION U/S 482 No. - 2381 of 2025 Applicant :- Mohd. Sharif Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko. And Another Counsel for Applicant :- Sachin Srivastava,Shatank Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Manish Kumar,J.

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Heard.

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The present application under Section 482 Cr.P.C. has been preferred with the following prayers:

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" it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash / set-aside the impugned order dated 28.01.2025 passed by learned Additional Judge & Sessions Judge/ F.T.C.-1, Bahraich in Sessions Trial No.366/2015 (State versus Mohd Sharif), arising out of Case Crime No.153/2015, under Section 376 I.P.C., Police Station Khairighat, District - Bahraich as contained in Annexure No.1 to this petition.

¶8

It is further prayed that this Ho'ble Court may kindly be pleased to stay the further proceedings of Session Trial No.366/2015 (State Versus Mohd. Sharif), arising out of Case Crime No.153/2015, under Section 376 I.P.C., Police Station - Khairighat, District Bahraich, pending in the court of lerned Additional District & Sessions Judge/ F.T.C. - 1, Bahraich during pendency of the instant petition in the interest of justice. "

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Learned counsel for the applicant has submitted that the applicant has moved an application U/s 311 Cr.P.C. for recalling PW.1 which was rejected by the concerned court without assigning reason and without application of mind.

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On the other hand learned A.G.A. has submitted that an F.I.R. dated 3.2.2015 has been lodged under Section 376 I.P.C. against the applicant in which after the investigation the chargesheet was filed and the prosecutrix, who was PW.1 in the session trial court, was cross-examined thoroughly by the applicant and thereafter the evidence of PW.1 was closed wayback in the year 2019. The application under Section 311 Cr.P.C. was filed on 25.08.2023 i.e. after more than 4 years. Hence, there is no illegality in the order passed by the court concerned rejecting the application preferred by the applicant under Section 311

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Cr.P.C.

¶12

After hearing learned counsel for the parties, going through the record of the case, it is an admitted case of the applicant also that the cross-examination of the PW.1 / prosecutrix was completed / closed on 31.07.2019 and after more than 4 years the application under Section 311 Cr.P.C. was filed on 25.08.2023. The court concerned had passed the impugned order assigning the reasons after application of mind and the application by assigning reason that the applicant had not mentioned any reason in his application for recalling / reexamining the PW.1, while moving the application under Section 311 Cr.P.C.

¶13

Under these circumstances, it is not found a fit case for recalling PW.1 for further cross-examination by the applicant as the applicant has not disclosed any reason for summoning / recalling the PW.1 for further cross-examination and moved an application by assigning general reason is nothing but an attempt to limitlessly stretch the proceedings of the criminal case. The application filed under Section 311 Cr.P.C. by the applicant in which no reason has been assigned and moved after four years of closing of evidence / recording the statement of PW.1 amounts to abuse of process of law as per law settled by the Hon'ble Supreme Court in the case of Swapan Kumar Chattergee vs. C.B.I. (2019) 14 SCC, page 328. The relevant paras of the aforesaid judgement is quoted herein below :

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"12. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this Section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.

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13. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier is not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision."

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In view of the aforesaid facts and circumstances of the case and the discussion made hereinabove, the application is devoid of merits and is accordingly dismissed.

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Order Date :- 9.4.2025/S. Kumar

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Digitally signed by :- SANTOSH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Sharif v. State of U.P. Thru. Prin. Secy. Deptt. of Home Lko. and Another

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Mohd. Sharif v. State of U.P. Thru. Prin. Secy. Deptt. of Home Lko. and Another

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