Allowed¶32

Vikky Alias Peeter v. State of U.P. and Another

Allahabad HC24 Sept 2025CRLR/3240/2025

Case brief

AI extract

What is this about?

Section 311 CrPC recall of witnesses refused after counsel's serial absence at cross-examination (1.10.2024, 20.3.2025, 16.4.2025); fair trial and defence evidence as valuable right; negligent counsel versus negligent sleeping party; natural justice; cross-examination reopened conditionally — expenses on accused, no adjournments; Allahabad High Court criminal revision; Baghpat; Session Trial No. 446 of 2022; case crime no. 248 of 2021; Sections 307, 506 IPC; Section 313 CrPC statement recorded 3.4.2025; precedents: Manu Devi v. State of Rajasthan (2019) 6 SCC 203 (counsel-cited); State of Haryana v. Ram Mehar (2016) 8 SCC 762; Swapan Kumar Chatterjee v. CBI (2019) 9 SCC 340.

What did the court decide?

Order dated 14.5.2025 set aside; trial court directed to summon PW-2/Jaiveer, PW-3/Constable Shailendra and PW-4/S.I. Mohd. Asif for cross-examination, subject to conditions that the revisionist cooperate, bear all witness expenses (private or public) and seek no adjournment, with summons on short dates or within one week.

1. The present criminal revision has been filed by the revisionist - Vikky Alias Peeter to set aside the impugned order dated 14.5.2025 passed by Additional Sessions Judge / Special Judge, (SC/ST Act), Baghpat in Session Trial No. 446 of 2022, arising out of case crime no. 248 of 2021, under Sections 307, 506 IPC, Police Station Doghat, District Baghpat whereby application under Section 311 CrPC moved by the revisionist was rejected.

3. An application u/s 311 of Cr.P.C. was filed by the revisionist / accused to recall PW-2/Jaiveer, PW- 3/Constable Shailendra and PW-4/S.I. Mohd. Asif for cross-examination but the same was rejected by the trial court and the opportunity for cross-examination was closed.

4. It is submitted by the learned counsel for the revisionist that the order passed on the application under Section 311 Cr.P.C. is illegal. It is further submitted that if the prayer made in the revision is not accepted, the revisionist would be deprived of his valuable right for fair trial. It is also submitted that an application under Section 311 Cr.P.C. can be filed at any stage of trial before delivery of final judgement. In support of this submission he has relied upon a judgement of the Hon'ble Supreme court in the case of Manu Devi vs

State of Rajasthan & Anr., (2019) 6 SCC 203 wherein the Hon'ble Supreme Court has held that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone.

7. A fair trial is the main object of criminal procedure, which may entail the interests of the accused, the victim and of the society and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned and the same must be ensured as this is a constitutional as well as human right. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, in the facts and circumstances of the case and to ensure fair trial, in my view, the court must be zealous in ensuring that there is no denial of fair trial.

8. The Hon'ble Apex Court in State of Haryana vs. Ram Mehar, (2016) 8 SCC 762 has held that interests of victim / the collective (represented through the prosecution) and accused must be balanced. Concept of fair trial cannot be limitlessly stretched to permit recall of witnesses endlessly on ground of magnanimity, etc.

9. In the case of Swapan Kumar Chatterjee vs. CBI, (2019) 9 SCC 340 it has been held by the Hon'ble Supreme Court that power under Section 311 CrPC is not to be exercised if application has been filed as abuse of process of law. Thus, where prosecution evidence has been closed along back and reasons for non-examination of witness earlier are not satisfactory, re-summoning of

witness at belated stage would cause great prejudice to accused and should not be allowed. Similarly, court should not encourage filing of successive applications for recall of a witness under Section 311.

10. In the present matter, from a perusal of the record it appears that on each and every occasion when the prosecution witnesses were present before the Court, cross-examination was not conducted by the learned counsel for the accused / revisionist. When PW-2 was examined on 1.10.2024 the learned counsel for the accused / revisionist did not appear to conduct the cross- examination and when PW-3 was examined on 20.3.2025 and his examination-in-chief was recorded no one appeared on behalf of the accused / revisionist to cross-examine the said witness, hence, the trial court closed the opportunity of cross-examination. In the like manner, on 16.4.2025 when PW-4 was examined and his examination-in- chief was being recorded, learned counsel for the accused / revisionist again did not turn-up for cross-examination and even he was called on phone to come for cross- examination before the Court but he did not turn up. On the aforesaid date the appearance of the accused was exempted through counsel and subsequently an application under Section 311 CrPC was moved by the accused / revisionist to recall PW-2, PW-3 and PW-4 for their further evidence. The relevant ordersheets have also been appended with the affidavit filed in support of the criminal revision which reveals negligent conduct on the part of the counsel for the accused / revisionist before the trial court and when the evidence of prosecution was closed and date was fixed for recording the statement of the accused under Section 313 CrPC and it was actually recorded on 3.4.2025 and on the request of the accused the date was adjourned for defence evidence, the instant application under Section 311 CrPC was moved which was rejected vide impugned order dated 14.5.2025 by the trial court.

11. Although the accused / revisionist has himself been negligent in the proceedings of the case but however the Court is also aware of the fact that if the opportunity to cross-examine the witnesses is not granted it will adversely affect the defence of the accused. Further,

though it is true that a negligent and sleeping party is normally not entitled for any mercy of the Court but it appears that in the instant matter conduct was negligent on the part of the counsel for the accused / revisionist which caused hardship to the accused. Hence, in my view, if the revisionist is not afforded appropriate and sufficient opportunity to cross-examine the witness, his valuable right to defend himself would be prejudiced. While passing the impugned order, the trial court without taking into consideration the principles of natural justice and fair trial rejected the application moved by the revisionist. Hence, the present revision is liable to be allowed and the order dated 14.5.2025 is liable to be set aside.

11. Accordingly, the criminal revision is allowed and the order dated 14.5.2025 passed by the Additional Sessions Judge / Special Judge, (SC/ST Act), Baghpat in Session Trial No. 446 of 2022, arising out of case crime no. 248 of 2021, under Sections 307, 506 IPC, Police Station Doghat, District Baghpat is hereby set aside and the trial court is directed to summon PW-2/Jaiveer, PW- 3/Constable Shailendra and PW-4/S.I. Mohd. Asif for cross examination, provided the revisionist cooperates with the trial court and all expenses of the witnesses, whether private or public, shall be borne by the accused / revisionist and he will not seek adjournment on any ground whatsoever if the witnesses are present in the Court. The trial court is directed to ensure that the witnesses shall be summoned after fixing short dates or if possible within a period of one week from the date of production of certified copy of this order before it and the hearing shall not be adjourned on the request of accused / revisionist and as far as possible cross- examination of a witness on a particular date shall be concluded by the accused / revisionist.

Vikky Alias Peeter v. State of U.P. and Another

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Vikky Alias Peeter v. State of U.P. and Another

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