Ajay Pratap Singh Alias Ajai Sipahi vs State of U.P. Thru. Prin. Secy. Deptt. of Home Lko and Another

Heard Shri Abhishek Singh, learned counsel assisted by Shri Anuj Kumar Gupta, learned counsel for the applicant, Shri Syed Farookh Ahmad, learned counsel for the first informant-opposite party no. 2 and Shri Vivek Gupta, learned AGA for the State.

¶12

By the impugned order dated 11.06.2024 the application filed by the applicant under Section 311 Cr.P.C. for recall of P.W. 8 Tara Singh Patel who was the investigation officer has been declined.

¶13

The learned trial court while rejecting the application has first noticed the timeline of the case. As per the impugned order examination in chief of P.W. 8 Tara Singh Patel was conducted on 28.10.2022. The defence did not cross examine the P.W. 8 on

¶14

A482 No. 6702 of 2025

¶15

2

¶16

the date of examination in chief. Thereafter P.W. 8 was extensively cross examined on 10.02.2023 by the defence. Adequate opportunity to cross examine P.W. 8 was thus provided to the applicant. The defence has also asked all relevant questions in the facts and circumstances of the case to the investigating officer while the latter was under cross examined. After examination of P.W. 8 and all prosecution witnesses the trial proceeded in due course. The conclusion of prosecution evidence set the stage for proceedings under Section 313 Cr.P.C. The proceedings under Section 313 Cr.P.C. too were concluded over a period of time.

¶17

It is fairly informed by learned counsel for the applicant that three defence witnesses have also been introduced at the stage of defence evidence. After conclusion of the evidence of both sides the matter was posted for hearing. The applicant then moved an application on 06.12.2023 under Section 311 Cr.P.C. to recall P.W. 8 for further cross examination. The trial also adverted to the merits of the case set out in application. On the back of the aforesaid reasoning and factual determination the learned trial court has rejected the application under Section 311 Cr.P.C.

¶18

The jurisdiction of the trial court under Section 311 Cr.P.C. is wide enough to meet the ends of justice. However, good authority has provided for caution and circumspection while exercising judicial discretion under the said provision.

¶19

The Supreme Court in State (NCT of Delhi) vs. Shiv Kumar

¶20

A482 No. 6702 of 2025

¶21

3

¶22

Yadav reported at (2016) 2 SCC 402, it has been held: -

¶23

"Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and un-called for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined."

¶24

7. The Supreme Court in Ratanlal Vs. Prahlad Jat reported at (2017) 9 SCC 340 , held as under:

¶25

"17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order."

¶26

The Supreme Court in Swapan Kumar Chatterjee vs CBI, reported at (2019) 14 SCC 328 , held thus:

¶27

A482 No. 6702 of 2025

¶28

4

¶29

"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.

¶30

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."

¶31

In V. N. Patil vs. K. Niranjan Kumar , reported at (2021) 3 SCC 661 , the Supreme Court held: -

¶32

"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".

¶33

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

¶34

A482 No. 6702 of 2025

¶35

5

¶36

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."

¶37

Learned counsel for the applicant has relied upon the judgement rendered by the Supreme Court in Manju Devi Vs.State of Rajasthan and others reported at 2019 (6) SCC 203. The facts of the case in which discretion was exercised in favour of the accused while allowing the application under Section 311 Cr.P.C., the Supreme Court in Manju Devi (supra) noticed the following facts:

¶38

“11. The indisputable fact situation of the case remains that the daughter of the appellant died an unnatural death on 14.01.2010 in Nigeria, where she was living with her husband (the respondent No. 2), who is standing the trial for offences under Section 302, 304B and 498A IPC. The first post-mortem of the dead-body of the daughter of appellant was carried out on 16.01.2010 in Aminu Kanu Teaching Hospital, Nigeria by the said Dr. I. Yusuf. A copy of the post-mortem report prepared by the said doctor in Nigeria has, of course, been placed on record wherein, the cause of death is stated as “asphyxia secondary to strangulation”. Though the dead-body of the daughter of appellant was brought to India on 29.01.2010 and Medical Board was constituted for conducting the postmortem but then, the Board found that no definite opinion could be given regarding the time and cause of death. The investigating agency, for the reasons best known to it, did not cite the said doctor, who conducted the first post-mortem in Nigeria as a witness. It is also not the case on behalf of the accused that the copy of the post-mortem report dated 16.01.2010 prepared in Nigeria was not disputed and/or he would not be seeking to cross-examine the said doctor, if he is examined as a witness in this matter. In the given set of facts and circumstances, evident it is that the testimony of the said doctor who conducted the first post-mortem in Nigeria is germane to the questions involved in this matter; and for a just

¶39

A482 No. 6702 of 2025

¶40

6

¶41

decision of the case with adequate opportunity to both the parties to put forward their case, the application under Section 311CrPC ought to have been allowed.

¶42

In those facts and circumstances the Supreme Court in Manju Devi (supra) held that the age of a case should not be the determinative factor in such matters and in any case length of the trial per se should not come in the way of examination of material witness by holding:

¶43

“12. Though it is expected that the trial of a sessions case should proceed with reasonable expedition and pendency of such a matter for about 8-9 years is not desirable but then, the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness.”

¶44

As noticed above in Manju Devi (supra) the material witness namely Doctor who had conducted the postmortem report was waived as a prosecution witness and not produced before the court. The testimony of the said witness was likely to have a significant impact on the trial. The facts of this case are distinguishable and Manju Devi (supra) does not support the case of the applicant.

¶45

On the contrary as noticed by the learned trial court in this case the defence had ample opportunity to cross examine P.W. 8. The defence has also fully availed the said opportunity and conducted a comprehensive cross examination. The applicant had been afforded all opportunities and the trial was processed in

¶46

A482 No. 6702 of 2025

¶47

7

¶48

a fair manner.

¶49

In this wake failure to file an application in a reasonable period of time would be a relevant factor in deciding the fate of the application under Section 311 Cr.P.C. Consequently the said delay in tendering the application under Section 311 Cr.P.C. would have a material bearing on its fate.

¶50

The need for recall of P.W. 8 for further cross examination will now be assessed on merits. The application under Section 311 Cr.P.C. seeks to cross examine the investigating officer on various aspects of forensic science laboratory report which was always in the record and in the knowledge of the applicant and his counsel. The question as regards the inspection of the spot of the incident by the investigating officer which is depicted in the application under Section 311 Cr.P.C. is an exercise in futility since the question related to the aforesaid inspection was pointedly asked to PW 8. This question only fortifies the findings of the learned trial court that the application under Section 311 CrP.C. is a dilatory tactic of the applicant to delay the process of law.

¶51

This Court has no reason to disagree with the findings of the learned trial court that all relevant questions in the facts and circumstances of the case have already been posed to P.W. 8 when the said witness was under cross examination.

¶52

In wake of the preceding discussion there is no cause for interference in the order impugned passed by the learned trial

¶53

A482 No. 6702 of 2025

¶54

8

¶55

court.

¶56

The Application U/S 482 is accordingly dismissed.

¶57

Interim order stands vacated.

¶58

A copy of this order to be communicated to the learned trial court.

¶59

The learned trial court shall forthwith proceed in accordance with law after giving an opportunity to the applicant to make his final arguments (through his counsel). In case the applicant or his counsel impedes the trial or adopts dilatory tactics the learned trial court shall record a finding to this effect and proceed in accordance with law.

¶60

(Ajay Bhanot,J.)

¶61

September 4, 2025

¶62

Dhananjai

¶63

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

Ajay Pratap Singh Alias Ajai Sipahi v. State of U.P. Thru. Prin. Secy. Deptt. of Home Lko and Another

Case brief

What is this about?

What did the court decide?

Ajay Pratap Singh Alias Ajai Sipahi v. State of U.P. Thru. Prin. Secy. Deptt. of Home Lko and Another

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

All orders in this case

Similar cases

Raja Ram vs State of Uttar Pradesh and 6 Others

Pawan vs State of U.P. and 12 Others

Kuber vs State of U.P.

Kamlawati Devi vs State of U.P. and 3 Others

Ram Siya and 6 Others vs Consolidation Officer and Another

Aarti vs State of U.P. and 3 Others