Allahabad High Court
Smt. Saroj Yadav vs State Of U.P. And 5 Ors on 11 July, 2019
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 79 Case :- APPLICATION U/S 482 No. - 25957 of 2019 Applicant :- Smt. Saroj Yadav Opposite Party :- State Of U.P. And 5 Ors Counsel for Applicant :- Amit Daga,Arun Kumar Sharma Counsel for Opposite Party :- G.A. Hon'ble Ram Krishna Gautam,J.
Vakalatnama filed today by Sri Abhilash Singh on behalf of O.P. No. 2 is taken on record.
This application under Section 482 Cr.P.C. has been filed by applicant Smt. Saroj Yadav against State of U.P. and five others with a prayer for quashing the order dated 2.4.2019 passed by the Additional Sessions Judge, Court No. 9, Firozabad, in S.T. No. 19 of 2016, State of U.P. Vs. Deepu and others, arising out of Case Crime No. 605 of 2013, u/s 364, 307, 147 I.P.C., P.S. Shikohabad, District Firozabad, over an application moved by the applicant under section 311 Cr.P.C., which was rejected, with a further request to direct the trial court to summon the prosecution witnesses PW1, PW2 and PW3 by way of allowing applicant's application dated 21.1.2019, so that justice may be done.
Heard Sri Amit Daga, learned counsel for the applicant, Sri Abhilash Singh, learned counsel for O.P. No. 2 and Sri K. K. Rajbhar, learned A.G.A. representing the State. Perused the records.
Learned counsel for the applicant argued that this Sessions Trial was pending before the trial Judge, where prosecution witnesses PW1 and PW2 including present applicant were examined, but their examination was under threat and pressure exerted by accused persons. Those two witnesses turned hostile. They did not support prosecution case. Subsequently on the date of recording of statement u/s 313 Cr.P.C. an application u/s 311 Cr.P.C. was moved by complainant for getting two prosecution witnesses, who were witnesses of fact and were not examined earlier, examined. This application was heard and allowed. Thereafter those two witnesses were got examined, who also did not support prosecution and they turned hostile. Hence for alleged exerted pressure and coercion resulting hostility of prosecution witnesses, for which complaint was filed, subsequently for such act F.I.R. was got registered against accused persons. Then this application u/s 311 Cr.P.C. was moved by the present applicant before the trial court for getting herself re-examined for the ends of justice. The learned trial Judge after hearing both the parties passed the impugned order dated 2.4.2019, whereby application moved u/s 311 Cr.P.C. was rejected. Hence for ends of justice this application u/s 482 Cr.P.C. has been moved for above prayed relief. There is no prejudice to accused persons by way of allowing this application because they will have further opportunity of cross-examination of witnesses and ends of justice will be there.
Learned counsel for O.P. No. 2 as well as learned A.G.A. have vehemently opposed the application with this contention that the applicant and her husband along with other witnesses were got examined and they all have not supported prosecution case because the same was false implication and evidence was recorded by way of examining prosecution witnesses by the Presiding Judge itself. There was direction of this court for expeditious disposal of trial, even then these applications are being moved, whereas once an application u/s 311 Cr.P.C. for examining two witnesses, who were not examined, was allowed and witnesses were examined and they have also not supported prosecution case. No iota of evidence was there that statements of PW1, PW2 and PW3 were under coercion. The subsequent application u/s 311 Cr.P.C. was moved under deliberate intention for getting trial lingered and for having opportunity to abuse process of court. Learned Trial Judge has rightly appreciated the facts and law placed before it and passed the impugned order. Hence they prayed for dismissal of this application u/s 482 Cr.P.C.
Considered the rival submissions made by the parties.
From the very perusal of impugned order dated 2.4.2019 and application moved u/s 311 Cr.P.C. before the Trial Judge, it is apparent that present application has been moved by applicant Smt. Saroj Yadav and the same has been supported by the affidavit of Subhash Chandra, her husband. Subhash Chandra has already been examined and he has not supported the case of prosecution. Rather Smt. Saroj Yadad, PW1, has specifically said that her husband Subhash Chandra was not present on the spot at the time of occurrence. Meaning thereby Subhash Chandra has been stating not those facts under his own personal perception of knowledge.
Application moved u/s 311 Cr.P.C. by Smt. Saroj Yadav was with a prayer for getting herself re-examined i.e. no request for getting other prosecution witnesses i.e. PW2 and PW3 examined was there. But in the present application, request has been made for getting PW1, PW2 and PW3 recalled and re-examined in the light of application moved u/s 311 Cr.P.C.. It itself shows that correct fact and perspective has not been placed before this Court and this application is vexatious and misconceived for this act.
PW1, Smt. Saroj Yadav, in her statement, recorded on oath, has categorically said that she was away about 250- 300 meters from place of occurrence and she could not hear the conversation made between the accused and her son. Whatever was told to her subsequently by the persons, she got the same written in the report. The Presiding Judge himself asked questions for ensuring testimony of this witness and she has been cross-examined by Public Prosecutor. She and her husband did not support the case of prosecution.
Now she has moved this application with contention of threat and exertion of pressure over her, but nowhere such complaint was made to the Presiding Judge during trial or in the application moved by her under section 311 Cr.P.C.
As per PW1, Shbhash Chandra, her husband, was not present on the spot and Subhash Chandra, examined under section 311 Cr.P.C., has not supported prosecution. When witnesses have not supported case of prosecution. Hence Trial Judge appreciated those facts placed on record and the law laid down by Apex Court in Zahira Habibullah Sheikh & another vs State of Gujarat & others, 2014(2) JIC 173 (SC), and under correct proposition and perspective of section 311 Cr.P.C., the application was held to be of no substance and ground.
Section 311 Cr.P.C. provides "any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."
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. as held by Apex court in State of Haryana Vs. Ram Mehar (2016) 8 SCC 762.
Apex Court in Ratanlal Vs. Prahlad Jat (2017) 9 SCC 340 has elaborately discussed the provisions of section 311 Cr.P.C. that motive and purpose given to the trial court is very preponderance. Discretionary power u/s 311 Cr.P.C. must be exercised with caution and circumspection and only for strong and valid reasons. Recall of a witnesses already examined is not a matter of course and discretion given to court in this regard has to be exercised judicially to prevent failure of justice. Reasons for exercising said power should be spelt out in order. Delay in filing application for recalling a witness is one of the important facts, which has to be explained in the application.
In the present case, the first information report was got lodged after four days of occurrence, i.e. much delayed report. In this case, no injury to his son was written in the report. Rather injury to driver was written in it. Identities of accused persons were said to be on the basis of saying by son of informant. PW1 in her testimony has categorically stated that both of accused persons were close relative of her and she was not under personal perception that they were present on the spot. Whatever was heard by her, was written in the report (Ext. Ka1). Learned trial judge has asked questions from this witness for ensuring her testimony.
Under all above facts and circumstances, proposition of law and perspective of section 311 Cr.P.C., this application is of no force and is liable to be rejected at this very stage.
The application is rejected.
However, whatever has been written in this order is not to be taken into account by the trial court and the trial court will take into account the material and evidence placed before it.
Order Date :- 11.7.2019 Pcl