Dismissed¶26

Momin Khan and Another v. State of U.P. Thru. Its Prin. Secy. Home Lko. and Another

Allahabad HC10 Apr 2025A482/3093/2025

Case brief

AI extract

What is this about?

Section 311 CrPC power to summon witness; summoning witness at instance of accused; defence witness stage; witness named in PW-1's cross-examination; Section 138 Negotiable Instruments Act complaint; Section 528 BNSS 2023 (482 CrPC) quashing jurisdiction; V.N. Patil v. K. Niranjan Kumar (2021) 3 SCC 661; Allahabad High Court Lucknow Bench; rejection of accused's application to summon witness upheld; application dismissed; no prejudice to accused. Useful where the accused seeks summons to a third-party witness referred to during trial and the court defers the request to the defence stage.

What did the court decide?

No material was indicated as to the relevance of Anil Singh except a reference to his name in the examination-in-chief/cross-examination of PW-1. ¶24

Momin Khan and Another Vs State of U.P. Thru. Its Prin… — Cheque Dishonour | Allahabad HC (2025)

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Neutral Citation No. - 2025:AHC-LKO:20271

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Court No. - 12

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Case :- APPLICATION U/S 482 No. - 3093 of 2025

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Applicant :- Momin Khan And Another Opposite Party :- State Of U.P. Thru. Its Prin. Secy. Home Lko. And Another Counsel for Applicant :- Lalla Chauhan,Sanket Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Alok Mathur,J.

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Heard Shri Lalla Chauhan, learned counsel for applicants, learned A.G.A.for the State and perused the material available on record.

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By means of the present application under Section 528 of the Bhartiya Nagarik Surkasha Sanhita, 2023 (482 Cr.P.C.), the applicant has assailed the order dated 13.02.2025 passed by the learned Additional Court No. 5 in Complaint Case No. 126834 of 2022 under Section 138 of the Negotiable Instruments Act, 1881.

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It has been submitted by learned counsel for applicants during the proceedings under Section 138 of the Negotiable Instruments Act, 1881 where the applicant is an accused in the aforesaid proceedings had moved an application under Section 311 Cr.P.C. seeking to summon one Anil Singh, Sales Manager as a witness.

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It was stated that PW-1 in his cross-examination had made a reference of Anil Singh as Sales Manager and consequently, stated that in the interest of justice, the said person may be summoned. The trial court has rejected the application stating that the said witness cannot be summoned on the request of the accused but the accused has a discretion to summon the said

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witness at the stage of defence witness.

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The only ground raised by the applicant is that the applicant does not have the details of the said person, therefore, he expressed his inability to summon the said person as a defence witness.

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This Court has considered the impugned order as well as arguments raised by learned counsel for applicant.

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According to section 311 Cr.P.C. the discretion is vested with the court which may at any stage of any inquiry, trial or other proceedings summon any person as a witness, or examine any person in attendance, though not summoned earlier, in case, the Court is of the opinion that his evidence appears to be essential to the just decision of the case.

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Hon'ble the Supreme Court has dealt with this point in the case of V.N. Patil v. K. Niranjan Kumar, reported in (2021) 3 SCC 661 which reads as under:-

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"14. The object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion".

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15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P. [Vijay Kumar v. State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240] : (SCC p. 141, para 17) "17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine

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Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."

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16. This principle has been further reiterated in Mannan Shaikh v. State of W.B. [Mannan Shaikh v. State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547] and thereafter in Ratanlal v. Prahlad Jat [Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 : (2017) 3 SCC (Cri) 729] and Swapan Kumar Chatterjee v. CBI [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] . The relevant paragraphs of Swapan Kumar Chatterjee [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] are as under: (Swapan Kumar Chatterjee case [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] , SCC p. 331, paras 10-11)

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"10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

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11. 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 re-examination 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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17. The aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice."

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In the present case, an application has been moved by the applicant, who is an accused in the aforesaid case to summon Anil Singh, Sales Manager.

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This Court finds that the Trial Court could not find any good ground for summoning the said person as a witness in the

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present proceedings but further duly considered that it shall be open for the accused to summon him as a defence witness. No material could be indicated with regard to the relevance of the said witness except the fact that a reference was made to his name in the examination-in-chief/cross examination of PW-1. This Court does not find any infirmity with the finding recorded by the trial court that the said person can be summoned as a defence witness. Therefore, it cannot be said that the interest of the accused has been adversely prejudiced.

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For the aforesaid reasons, this Court does not find any infirmity with the impugned order dated 13.02.2025 passed by the learned Additional Court No. 5 in Complaint Case No. 126834 of 2022 under Section 138 of the Negotiable Instruments Act, 1881.

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This application being devoid of merit, is accordingly, dismissed.

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(Alok Mathur, J.)

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Order Date :- 10.4.2025 Virendra

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

Momin Khan and Another v. State of U.P. Thru. Its Prin. Secy. Home Lko. and Another

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Momin Khan and Another v. State of U.P. Thru. Its Prin. Secy. Home Lko. and Another

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