Maisar Ali @ Mahassar Vs State of U.P. Thru. Prin. Secy. Home and Another

Neutral Citation No. - 2025:AHC-LKO:16289

Court No. - 12

Case :- CRIMINAL APPEAL No. - 3936 of 2024

Appellant :- Maisar Ali @ Mahassar Respondent :- State Of U.P. Thru. Prin. Secy. Home And Another Counsel for Appellant :- Rakesh Kumar Yadav Counsel for Respondent :- G.A.

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Hon'ble Alok Mathur,J.

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Heard Sri Rakesh Kumar Yadav, learned counsel for appellant as well as learned A.G.A. for the State.

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By means of present criminal appeal under Section 14 of Schedule Caste / Schedule Tribe (Prevention of Atrocities) Act, 1989 the appellant has assailed the order dated 18.11.2024 passed by Special Judge, SC/ST Act, Sultanpur in Crl. Misc. Case No. 59/2003 (State Vs. Chhottan & others) P.S. - Dhammaur, District - Amthi, thereby rejecting the application U/S 311 Cr.P.C.

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It has been submitted by learned counsel for appellant that appellant had moved an application to summon the P.W. 1 for cross-examination as he was never cross-examined previously and his application under Section 311 of Cr.P.C. has been rejected by means of impugned order dated 18.11.2024 by the Special Judge S.C. / S.T. Act (P.A. ), Sultanpur. It has been submitted that P.W. 1 was examined in June, 2005 and date was fixed for his cross-examination on 17.10.2005 and 18.11.2005 and despite repeatedly listing the case for cross-examination, the defence counsel did not turn up to cross-examine the said witness and accordingly the opportunity of cross-examination was closed on 18.11.2005.

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It is only when the matter is at the final stage, it seems that it was noticed by counsel for appellant and an application was given on 18.11.2024 under Section 311 of Cr.P.C. for recall of the witness for cross-examination. There is no dispute that the said application has been given after a lapse of 19 years and the perusal of the application which is on record indicates that when the matter was listed for final hearing and counsel for appellant was preparing the brief it was discovered that P.W.1/Mukesh had not been cross-examined and also he was an important witness. At this stage, it was found that it would be in the interest of justice to cross-examine P.W.-1 and consequently

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the said application was made.

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The trial court while rejecting the application under Section 311 of Cr.P.C. has recorded the proceedings of the order-sheet where it has been found that despite repeated opportunity is being given to the appellant to cross-examine P.W.-1 the defence counsel has not turned up and consequently the opportunity to cross-examine P.W.-1 was closed on 18.11.2005.

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Apart from the above, subsequent prosecution witnesses were duly examined and even the statement of the accused under Section 313 of Cr.P.C. was recorded on 19.09.2024 and the case was listed for many dates for the defence to produce their defence but despite repeated opportunities no witness was produced on behalf of the defence. It is when the case was listed for final hearing the application under Section 311 of Cr.P.C. has been moved. One of the reasons for rejecting the application was the length of time. It was stated that 19 years have lapsed since P.W.-1 was examined and in the interest of justice, the said application was rejected.

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Learned counsel for appellant has vehemently submitted that the defence of the appellant would be prejudiced in case they are not entitled to examine the material witness P.W.-1 and the length of time would not be material in deciding the application under Section 311 of Cr.P.C. In support of his submissions, he has relied upon several judgments of Hon'ble the Supreme Court including Satbir Singh Vs. State of Haryana & Ors Criminal Appeal arising out of S:LP (Crl.) No. 1258/2022 and Manju Devi Vs. State of Rajasthan & Anr. Criminal Appeal No. 688 of 2019 (Arising Out of SLP (Crl.) No. 8315 of 2018), where Hon'ble the Supreme Court has clearly held that delay in itself would not be material to decide the application under Section 311 of Cr.P.C..

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Apart from the above, this Court has put a query to learned counsel for appellant as to how the case of the prosecution would be prejudiced and how was it essential to cross examine P.W.-1 and the application preferred by the appellant under Section 311 of Cr.P.C. is totally silent with regard to the fact as to the interest of the accused would be prejudiced and as to why it necessary for them to cross-examine P.W.-1. In the aforesaid circumstances, it is necessary to note the judgment of the Supreme Court in the case of Natasha Singh V. CBI (State), 2013 (5) SCC 741, where the Supreme Court has observed as under:-

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"8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage"

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of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

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*** *** ***"

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The powers under Section 311 of Cr.P.C. have been duly discussed in a very concise and clear manner where it has been recorded that it is the discretion upon the Court to summon the material witness or to examine a person present at any stage or any inquiry or trial as a witness and to recall and re-examine any person who has already been examined if his evidence appears to be essential to arrive at just decision. One of the key factors is that the court was satisfied itself that it was in fact essential to examine such a witness or to recall him for further examination in order to arrive at just decision.

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Testing the impugned order and the case of the appellate at the touchstone of the judgment of the Supreme Court, it is noticed that no reason has been provided by the appellant either in the application before the trial court filed under Section 311 of Cr.P.C. or even in the present appeal. No reason has been given for cross-examination of P.W.-1 and certainly in the aforesaid circumstances when the trial court is at fag end and it fixed for final hearing, such an application has to be dealt more carefully than in case such an application was moved at an early stage of the trial. Speedy trial is a fundamental right conferred upon the accused and the court is also bound to conclude the trial as expeditiously as possible. When such an application is filed at the fag end of the trial, one of the key factors which should bear in the mind of the trial court is as to whether such an application is given in a bona fide manner or merely to procrastinate the trial. It is due after due examination of the material on record, a decision has to be taken whether to allow the application under Section 311 of Cr.P.C. or otherwise.

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The delay in filing application is one of the important factors which has to be explained in the application. Hon'ble Supreme Court in the case of Umar Mohammaed & Ors. Vs. State of Rajasthan, 2007 (14) SCC 711 , has held that:

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"38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application of 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and crossexamination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed."

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In the present case, there is absence of any reason necessitating invocation of powers under Section 311 of Cr.P.C. Neither before the trial court nor before this Court any reason has been indicated for recalling of P.W.-1 for crossexamination. Accordingly, this Court does not find any infirmity in the order of the trial court dated 18.11.2024 rejecting the application for recall of P.W.-1.

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In light of the above, criminal appeal is devoid of merits and is accordingly dismissed .

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(Alok Mathur, J.)

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Order Date :- 20.3.2025 Ravi/

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Digitally signed by :- RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench

Maisar Ali @ Mahassar v. State of U.P. Thru. Prin. Secy. Home and Another

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Maisar Ali @ Mahassar v. State of U.P. Thru. Prin. Secy. Home and Another

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