Allahabad High Court
Uday Yadav vs State Of U.P. And Another on 14 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 1st March, 2023 Delivered on 14th March, 2023 Court No. - 73 Case :- APPLICATION U/S 482 No. - 28317 of 2022 Applicant :- Uday Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhishek Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Shiv Shanker Prasad,J.
1. This application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the order dated 29th August, 2022 passed by the Additional Sessions, Judge, Court No.15, Allahabad in Sessions Trial No. 196 of 2015 (State of U.P. Vs. Uday Yadav), arising out of Case Crime NO. 609 of 2014 under Section 302 I.P.C., Police Station Dhoomanganj, District-Prayagraj, whereby his application dated 25th August, 2022 under Section 311 Cr.P.C. praying for further cross-examination of P.W.-2 has been rejected.
2. I have heard Mr. Abhishek Kumar Yadav, learned counsel for the applicant and the learned A.G.A. for the State as well as perused the entire material available on record.
3. The relevant facts as born out from the records of the present application is as follows:
For the alleged incident occurred on 04.10.2014, first information report has been lodged by opposite party no.2 which came to be registered as Case Crime No. 609 of 2014 under section 147, 148, 149, 302 and 120-B I.P.C. Police Station- Dhoomanganj, District Prayagraj on 14.10.2021. After completion of statutory investigation under Chapter XII Cr.P.C. the Police submitted charge-sheet under Section 302 I.P.C. against the applicant and co-accused Harish Chandra. On submission of the charge-sheet, the concerned Magistrate took cognizance and committed the case to the Court of Sessions, where the case was registered as Sessions Trial No. 196 of 2015 (State Vs. Harish Chandra and Another). The charges against the applicant and co- accused Harish Chandra were framed by the learned additional Sessions Judge/Special Judge (S.C./S.T.) Act, Allahabad on 10.07.2019. The charge under section 25 of Arms Act was also framed against the applicant on 10.07.2019 in S.T. No. 196 of 2015 (State Vs. Harish Chandra and Others), arising out of Case Crime No. 609 of 2014 under section 3/25 Arms Act. The Additional and District Judge Court No.2 Allahabad passed the order dated 18.10.2019 in the Session Trial No. 196 of 2015 ( State of U.P. Vs. Harish Chandra and Another) to separate the file of accused Harish Chandra from the Session Trial No. 196 of 2015 and the original paper of the case was directed to be kept in the trial of the applicant Uday Yadav and considering the facts and circumstances, a direction was issued by the trial court to expedite the trial of the applicant vide orders dated 16.10.2019 and 19.08.2019. The aforesaid case was taken up on 21.10.2019 before the trial court, which passed the order dated 21.10.2019 fixing 22.10.2019 for recording the statement of prosecution witness Smt. Uma. The statement of P.W. 2 Pramod Kumar Sonkar was recorded in the case bearing S.T. No. 196 of 2015 (State Vs. Uday Yadav), on 24.10.2019 and he was cross-examined on 24.10.2019, 31.10.2019, 04.11.2019, 05.11.2019. In the examination- in-chief, in the trial of the applicant P.W.-2 has stated that the applicant and co-accused Harish Chandra fired upon the deceased by their country-made pistols, whereas in the trial of co-accused Harish Chandra being Sessions Trial No. 696 of 2019 (State vs. Harish Chandra), on 24th May, 2022, P.W.-2 has stated that he has not seen the person who fired upon the deceased Roop Chandra. When this very fact came to the knowledge of the applicant that totally contradictory statement has been given by P.W.-2 Pramod Kumar on 24.05.2022 in the S.T. No. 696 of 2019, State vs. Harish Chandra, the applicant moved an application under Section 311 Cr.P.C. on 24.08.2022 in S.T. No. 196 of 2015 (State Vs. Uday Yadav), for permitting to further cross-examine P.W. 2 Pramod Kumar with a view to elicit the truth. The said application has been rejected by the trial court under the order impugned.
4. Learned counsel for the applicant submits that the court below without considering the materials available on the record and ignoring the facts and circumstances of the case passed the impugned order dated 29.08.2022 by which the application bearing Paper No. 23-Kha moved by the applicant under section 311 Cr.P.C. has been rejected without application of mind causing serious injustice to the applicant- accused. Learned counsel for the applicant further submits that the factum of hostility of the witness P.W. 2 Pramod Kumar Sonkar was not available when he was examined in S.T. No. 196 of 2015 (State Vs. Uday Yadav) hence the observation of the learned Court below that the witness had already been crossed-examined three times could not have been ground to reject the application for further cross examination on the basis of his statement being recorded on 24.05.2022 in the S.T. No. 696 of 2019 (State vs. Harish Chandra). The applicant could not have asked the questions relating to the statement given after the conclusion of his evidence in S.T. No. 196 of 2015 (State vs. Uday Yadav), since the evidence of P.W. 2 Pramod Kumar Sonkar recorded in S.T. No. 696 of 2019 (State vs. Harish Chandra), was material for the fair decision of the trial of S.T. No. No. 196 of 2015 and unless the opportunity to bring the real facts was not afforded to the applicant by his cross-examination there are chances of failure of justice.
5. Learned counsel for the applicant further submits that the discretionary power vested in the court was not exercised in judicious manner and the application of the applicant was rejected solely on the ground that the cross- examination of the witness has sufficiently been done which could not have been the ground to reject the application in the fact and circumstances of the present case. Unless the witness is contradicted in respect of the statements recorded in a judicial proceeding, his evidence may not be given importance unless his attention is drawn to the statements made in the judicial proceeding and as such his further cross examination was important and necessary for the fair and just decision of this case.
6. Learned counsel for the applicant further submits that trial Court assumed that the witness was being recalled to get him declared hostile which could not be proper and feasible, this reasoning is uncalled for and based on assumption and presumption only because the Court has ample power to take action against the witness if deposes totally against the evidence earlier recorded and takes summersault. For the ends of justice and to unearth the truth his further cross examination was necessary.
On the cumulative strength of the aforesaid,learned counsel for the applicant submits that by the impugned order the application under section 311 Cr.P.C. moved by the applicant has been rejected and 02.09.2022 has been fixed for argument and in the facts and circumstances of the case it is in the interest of justice that this Hon'ble Court may set aside the order impugned and direct the court below to permit the applicant to cross-examine P.W.-2 again under Section 311 Cr.P.C.
7. On the other-hand, learned A.G.A. submits that there is no illegality or infirmity in the order passed by the court below so as to warrant any interference by this Court under Section 482 Cr.P.C.
8. I have considered the submissions made by the learned counsel for the parties and have examined the records of the present application specifically the order impugned rejecting the application of the applicant to cross-examine P.W.-2 once again.
9. The court below while passing the impugned order has recorded its finding that the argument advanced by the learned counsel for the accused-appellant/applicant that in the case in hand, charges against the two accused Uday Yadav and Harishchandra were framed together earlier, but after some time the file of co-accused Harishchandra was separated and the statement of P.W.-2 Pramod Kumar Sonkar has been recorded separately in both the trial cases, in which there are many contradictions, therefore, in such a situation it is necessary to summon the same witness again has been found to be of no force. For the said opinion, the ground taken by the court below is that it is not proper to summon the witness Pramod Kumar Sonkar again in the present case, as in the present case the statement of witness Pramod Kumar Sonkar has been recorded on 24.10.2019 and the cross-examination of the said witness has been done on 31.10.2019, 04.11.2019 and 05.11.2019. The trial court has further recorded its finding that after the statement of all the other witnesses, the trial case is currently at the stage of argument. The trial court has opined that there is no ground for calling the same witness merely in anticipation of his turning hostile. In the light of the above discussion, the trial court has come to the conclusion that it is not just and expedient to summon the same witness again in the hope of turning hostile, as such the trial court has held that application under Section 311 of the Code of Criminal Procedure is not maintainable and therefore deserves to be quashed under the order impugned.
10. On deeper scrutiny of the impugned order as well as the submissions made by the learned counsel for the applicant, this Court is of the opinion that on one hand, the trial court seems to be correct that trial case of the applicant could be delayed for reaching its logical end due to repeated summon of witnesses (cross-examination of P.W.-2 in the facts of the case) but this Court cannot loose sight of the fact that for the logical conclusion, the accused and the litigant should be given enough opportunity to plead their respective case. It is no doubt true that in the trial case of the applicant being Sessions Trial No. 196 of 2015, on three occasions, the cross-examination of P.W.-2 has been done and the applicant has been afforded ample opportunity to cross-examine the said witness. However, when the applicant came to know that same witness Pramod Kumar Sonkar has been declared hostile in the same case crime registered for the offence of murder of the same deceased but in different session case of co-accused being Session Trial No. 696 of 2019, the prayer of the applicant to permit him to cross-examine P.W.-2 again in his trial case under Section 311 Cr.P.C. cannot be ignored in the interest of substantial justice. It would be very strange that for the same offence in the same criminal case but in the different trial cases of two criminals, on the basis of different statements of the same person, different views will come for both the accused. It is well settled that justice should not only be done but also seen to be done.
11. This Court is conscious of the fact that the provisions contained in Section 311 Cr.P.C. confer the power of wide amplitude on the court concerned to summon, examine, recall and re-examine such person.
12. For ready reference, Section 311 Cr.P.C. is reproduced herein-under:-
"311. Power to summon material witness, or examine person present.
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 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."
13. From perusal of Section 311 Cr.P.C., it is apparent that this section is divisible in two parts. In the first part discretion is given to the Court and enables it at any stage of an inquiry, trial or other proceedings under the Code, (a) to summon any one as a witness, or (b) to examine any person in the Court, or (c) to recall and re-examine any person whose evidence has already been recorded; on the other hand, the second part appears to be mandatory and requires the Court to take any of the steps mentioned above if the new evidence appears to be essential to the just decision of the case.
14. The ambit and scope of Section 311 Cr.P.C. have been considered very recently by Supreme Court in V. N Patil Vs. Niranjan Kumar and Others, reported in (2021) 3 SCC 661, where in following has been observed in paragraphs 14, 15, 16 and 17:-
"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..................................................
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15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar Vs. State of Uttar Pradesh and Another: (SCCp. 141, para 17) "17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."
16. This principle has been further reiterated in Mannan Shaikh and Others Vs. State of West Bengal and Another and thereafter in Ratanlal Vs. Prahlad Jat and Others and Swapan Kumar Chatterjee Vs. Central Bureau of Investigation ( Swapan Kumar Chatterjee case SCC p.331, paras 10-11. The relevant paras of Swapan Kumar Chatterjee(supra) are as under: "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.
11. 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."
17. 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 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."
15. In Varsha Garg Vs. State of Madhya Pradesh & Others reported in 2022 SCC OnLine SC 986 in paras 31 to 37 the Hon'ble Spreme Court has held as under:-
"31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court "may":
(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and
(ii) Recall and re-examine any person who has already been examined.
32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court "shall" summon and examine or recall and re-examine any such person "if his evidence appears to the Court to be essential to the just decision of the case". Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.
33. The first part of the statutory provision which uses the expression "may" postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression "shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case". Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.
34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed:
"16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision -- either discretionary or mandatory -- depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice."
35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the "evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means." In that context the Court observed:
"18 ...Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties."
36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P.19, State of W.B. v. Tulsidas Mundhra20, Jamatraj Kewalji Govani v. State of Maharashtra21, Masalti v. State of U.P.22, Rajeswar Prosad Misra v. State of W.B.23 and R.B. Mithani v. State of Maharashtra24, the Court held:
27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."
37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest."
13. The provisions contained in Section 311 Cr.P.C., being germane to the present controversy, are extracted herein below:-
"311. Power to summon material witness, or examine person present.-- 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."
(emphasis supplied)
16. In view of the above discussions and deliberations, this Court opines that to meet the ends of justice, the door cannot be shut against the accused persons without giving opportunity to cross-examine the witness only after he came to know that in another sessions trial the same witness has turned hostile.
17. Accordingly, the order impugned passed by the trial court dated 29th August, 2022 passed by the Additional Sessions Judge, Court No.15, Allahabad in Session Trial No. 196 of 2015 (State Vs. Uday Yadav), arising out of Case Crime No. 609 of 2014 under Section 302 I.P.C., Police Station-Dhoomanganj, District-Allahabad rejecting the application filed by the applicant under Section 311 Cr.P.C. for further cross-examination of P.W.-2 is set aside. The trial court is directed to fix a date for cross-examination of P.W.-2 again by the applicant in the changed circumstances.
18. With the aforesaid directions, the present application stands allowed.
19. It is made clear that this Court has not expressed any opinion on the merits of the sessions trial no. 196 of 2015.
(Shiv Shanker Prasad, J.) Order Date :- 14.03.2023 Sushil/-