Dismissed

Rajendra Bajpai and Ors. v. State Of Chhattisgarh

Chhattisgarh HC4 Feb 2014CRMP/83/2014

Case brief

AI extract

What is this about?

The High Court dismissed a petition under Section 482 Cr.P.C. challenging the rejection of a request for re-examination of a prosecution witness. The court found the application was not bona-fide, protracted the trial, and sought to fill a lacuna improperly.

What did the court decide?

The petition filed under Section 482 Cr.P.C. was summarily dismissed for lack of merit.

Rajendra Bajpai and Ors. Vs State Of Chhattisgarh — Chhattisgarh HC (2014) — LawSathi Research

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IN THE HON'BLE HIGH COURT OF CHHATTCSlSARH

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AT BILASPUR

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Cr. M. P. N0. ^3 /2014

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PETITIONERS : 1. Rajendra Bajpai S/o Late Shri Shital (Accused No.l) Prasad Bajpai, Aged About- 65 years (Accused No.2) 2. Smt. Pushpalata<Bajpai W/o Shri Rajendra Bajpai, Aged About56

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years,

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(Accused No.3) 3. Ravi Bajpai S/o Shri Rajendra Bajpai, Aged About- 32 years, All R/o Quarter No. 9/B, Street^•••^y^s^ Avenue B, Sector- 7, Bhilai, Tahsil & " ^2^?^ Distt.- Ciurg (C.G.). < t^"""^" ^

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VERSUS

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RESPONDENT %v State of Chhat^arh^^^^^^ Through;- the(^ollecto^ Durg, DisttDurg (C.G.). e-v^A.^o k^] '^]

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PETITEON UN&ER SECTION 482 OF THE CODE OF<^

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CRIMINAL PROCEDURE 1973

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Being aggrieved by th.e order dated 26.10.2013 passed in Criminal 1?evision No. 123/2013 whereby the Learned Additional Session Judge Durg, Distt.- Durg (C.6.) has dismissed the above said criminal revision filed by the petitioners (accused persons) against the order dated 12.06.2013 passed by the Learned Judicial ^, Magistrafe 1st Class, Durg (C.G.) in Criminal Case No^2^2010^-2<^°/o; where under the application filed by the petitioners (accused persons) under section 311 of the Code of Criminal Procedure 1973 was rejected/dismissed, the petitioners (accused persons) submit this petition on following facts and grounds amongst others.

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HIGH COURT OF CHHATTISGARH: BILASPUR

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SINGLE BENCH: HON'BLE GOUTAM BHADURI, J

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Cr. M.P. No. 83 of 2014

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APPLICANTS

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RESPONDENT

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Rajendra Bajpai and two others Vs.

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State of Chhattisgarh

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Present:

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Mr. Jitendra Gupta, Counsel for the applicants.

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Mr. Sandeep Yadav, Panel Lawyer, forthe State.

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QRDER

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(04.02.2014)

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This is a petition filed under Section 482 of the Code of Criminal Procedurechallenging the order dated 26th October 2013 passed by the Addl. Sessions Judge, Durg, in Criminal Revision No.123/2013 which in tyrn arose out of the order dated 12.06.2013 passed by the JMFC in Crimincal Case No.27/2010.

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The facts of the case as projected by the petitioner is that on the basis of the report; lodged by complainant Smt. Renuka Awasthi, Crime No.69/2009 was registered against the . petitioners for the offence punishable u/s 498-A read with Section 34, 506 & 406 IPC. After investigation challan was filed and charges u/s 498A, 506 Part II & 406 IPC and Section 4 of the Dowry Prohibition Act, 1961 were framed against the petitioners.^{Thereafterthecomplainantwasexaminedinexamination-in-} chief and was subsequently cross examined. Subsequently, the petitioners thereafter filed an application u/s 311 of the Code of Criminal Procedure, 1973 for re-examination of the complainant as several questions relating to omissions and contradictions could not be asked during her crossexamination by the counsel engaged by the petitioners. The learned JMFC by orderdated 12.06.2013 rejected the said application. Feeling aggrieved, the petitioners preferred revision which was also dismissed by the Addl. Sessions Judge. Hence the instant revision.

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The__cor.e_aueation involved in this case is the rejection of an

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v~^r

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application u/s 311 of Cr.P.C., wherein the application preferred by the accused was dismissed on.the ground that the because of the fault of the eariier Advocate who was appearing on their behalf, certain questions u/s 154, 161, 162 Cr.P.C. whieh were important could not be asked.

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Learned counsel for the petitioner submits that the criminal case was pending against the petitioners on the basis of a report lodged by the complainant Smt. Renuka Awasthi u/s 498-A read with Section 34, 506 & 406 IPC. It was alleged by the complainant that the complainant was harassed by the petitioner for dowry. After investigation of the case on the report of Renuka Awasthi, a'case u/s 69/2009 was registered and ultimately the charge sheet was filed on 15.1.2010. Subsequently on 19.05.2010 charges u/s 498-A, 506 Part II, 406 IPC and section4 of the Dowry Prohibition Act, 1961 was framed against the pstitioner.

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Learned counsel for the petitioner submits that on 23.06.2011, complainant Smt. Renuka Awasthi was examined in her examination-inchief and thereafter she was cross examined on 17.11.2011. The counsel would submit that though her cross examination was completed, yet several questions related tb omissions and contradictions could not be asked during her cross examination due to mistake of the counsel who was appearing and defending on behalf of the accused petitioners. Thereafter, they filed an application u/s 311 of Cr.P.C. for re-examination of the complaint Renuka Awasthy inter-alia alleging that certain questions which were required to contradict and confront with the statement of the witnesses could not be asked and fhereby the right guaranteed u/ss 161, 162, 154 is defeated. The application u/s 311 of Cr.P.C., enumerated a detailed questions which could not be asked and as such, it was submitted that in absence of such questions, the actual truth could not come to^fore wh'ich' would substantiate the falsity.

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The learned trial Court on such applieation being moved u/s 311 Cr.P.C., came to a finding that when initially the evidence was adduced, examination-in-chief of the complainant was made on 23.6.2011 and

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thereafter, the cross examination was made on the date so fixed and subsequently due to paucity of time, the same could not be completed. The cross examination again commenced on 17.11.2011 i.e., after 5 months of examination-in-chief and part of cross examination was done and thereafter again a detailed cross examination was made. The learned trial Court had recorded the finding that.in order to complete the cross examination of the witnesses, 3 opportunities on different dates, were afforded to the accused petitioners and the trial Court also gave a finding that a detailed crossexamination was made. Subsequently, after a period of 1 year and two months, again application was filed by the petitioners to re-examine the complainant and the trial Court came to conclusion that such application is not bona-fide and hence rejected. Thereafter, when such order was subject of the challenge in revision. The Revisional Court too dismissed such application. It was recorded that cross examination contained in more than 10 pages thereby prima-facie it cannot be accepted that proper opportunity has not been given and thereby the questions could not be asked during her cross examination and ultimately the revision was dismissed.

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Hon'ble the Supreme Court in a case law reported in 2013 AIR SC Weekly 4179 between Raja Ram Prasad Yadav Vs. State of Bihar has laid down the principles of Section 311 with respect to the power of the Court to summon, recall or re-examine any person. The following principles which are enumerated in para 23 are quoted herein below:

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From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C., read along-with Section 138 ofthe EvidenceAct, we feel the following principles will have to be borne in mind by the Courts:

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a) Whether the Court is right in thinking that the new evidenee is needed by it ? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?

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. b) THe exercise of the widest discretionary power under Section 311, Cr.P.C., should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be

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defeated.

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c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.

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d) The exercise of power under Section 311, Cr.P.C., should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

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e) The exercise of the said power cannot be dubbed as filling.jn a lacuna in a prosecution case, unless the facts ahd circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage ofjustice.

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f) The wide discretionary power should be

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exercised judiciously and not arbitrarily;

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g) The Court must satisfy itself that it was in every respect 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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h) The object of Section 311, Cr.P.C., simultaneously inriposes a duty on the Court to determine the truth and to render a just decision.

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I) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without suchevidence being considered.

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j) Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

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k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused. getting an opportunity rather than protecting the prosecution against possible prejudice at the cost

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of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

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I) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

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m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

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n) The power under Seotion 311, Cr.P.C., must therefore, be invoked by the Court only in order to meet the ends of justice for strong and 'valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.

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Hon'ble the Supreme Court has categorically laid down in the aforesaid principle that it is mainly on the power of the Court which gives wide discretionary power u/s 311 Cr.P.C., to ensure that the judgment may not be rendered on inchoate, inconclusive speculative presentation offacts, and when the evidence appears to be essential to the just decision of the case, the power can be exercised. The exercise should be restored only with the object of finding oyt the truth or obtaining proper proof of such fact which will lead to just and correct decision of the case and the exercise of said power cannot bedubbed asa filling in alacuna in a prosecution case, unless the facts and circumstancesof the case make it apparent.

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Applying the aforesaid principles in the present case, when the evidence of the prosecution placed before me is examined , 1 do not find that any lacuna was left out while cross examining the complainant. The cross examination runs in number of pages that too on different dates. The cross examination was completed with an intervals of certain gap and all of a sudden after a period of one year coming out with an application u/s 311 Cr.P.C., projecting the long list of further questions do not appear to be

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E—

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bonafide. Further, examination of the evidence on record and the crossexamination which is compared with the projected detailed list of questioner as scribed in an application u/s 311 Cr.P.C., makes it clear that the applicant wanted to overlap the same with the questions already asked so as to fill up the lacuna. Certainly thespirit and object of Section 311 of Cr.P.C., are not on mere surmises and conjectures. The lacuna cannot be fulfilled under the garb of section 311 of Cr.P.C. In the instant case after careful consideration and perusal of statements in cross examination, any essential question was left out which suppresses the truth which will obstruct the Court to come.to to just and correct decision of the case. Prima facie, It appears that the said application is movedwith sole idea to protract the trial and certainly therefore the mandate of Section 311 of Cr.P.C., is not meant for it.

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For the foregoing reasons, the petition does not have any merit and

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is hereby summarily dismissed.

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Sd/Goutam Bhaduri Judge

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Rao

Rajendra Bajpai and Ors. v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rajendra Bajpai and Ors. v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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