Allahabad High Court
Chandrajit Singh @ Chehku And 6 Others vs State Of U.P. And Another on 24 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:146853 A.F.R. Reserved Court No. - 92 Case :- APPLICATION U/S 482 No. - 18731 of 2023 Applicant :- Chandrajit Singh @ Chehku And 6 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Purushottam Dixit,Jitendra Kumar,Keshav Hari Dixit Counsel for Opposite Party :- G.A.,Sushil Kumar Dubey Hon'ble Surendra Singh-I,J.
Heard Sri Purushottam Dixit, learned counsel for the applicants, Sri Sushil Kumar Dubey, learned counsel for the opposite party no. 2, Sri Prashant Saxena, learned A.G.A. for the State and perused the record.
2. The present 482 Cr.P.C. application has been filed to set-aside the order dated 06.05.2023 (State Vs. Chandrajit @ Chahku and others) and all proceedings arising out of Case Crime No. 94 of 1994 u/s 147, 148, 149, 302, 395, 396, 504 I.P.C., Police Station- Basrehar, District- Etawah as a Special Case No. 265 of 2008, pending in the court of learned Special Judge (Dacoity Affected Areas Act)/Additional Sessions Judge, Court No. 5, Etawah and witnesses V.P. Singh (Retired) S.I., R/o Phoolbagh Colony, Police Station- Nauchandi, Shahar and District- Meerut (Investigating Officer), Ghanshyam Ahirwar, Inspector (Investigating Officer C.B.C.I.D.) and Dr. S.K. Agarwal, Medical Officer, Witness (Postmortem), may be recalled for their cross-examination.
3. It has been submitted by the learned counsel for the applicant that vide impugned order dated 06.05.2023, the trial court rejected the application 354 Ka dated 26.04.2023 u/s 311 Cr.P.C. filed by the applicants/accused. The applicants/accused have filed their application u/s 311 Cr.P.C. with the averment that in the beginning, charge was framed against the accused u/s 302 & 395 I.P.C. and prosecution witnesses were examined after framing of the charge in aforesaid sections. The second charge was framed on 13.10.2010 u/s 396 I.P.C. After framing of the altered charge u/s 396 I.P.C., on 14.02.2023, P.W.1 Rajesh and P.W.3 Vijay Kumar were cross-examined.
4. It has been next submitted by the learned counsel for the applicant that after alteration of charge, the informant had filed Criminal Revision No. 4882 of 2010, Rajesh Kumar Singh Vs. State of U.P. & Others. Vide order dated 18.11.2010, the trial of the said criminal case was stayed by the Hon'ble High Court. The stay order was vacated in the year 2023. Thereafter, P.W.1 Rajesh Kumar and P.W.2 Vijay Kumar were examined. Thus, there was no act on the part of the accused in delaying the trial of the case. Thus, the defence did not contribute for the delay caused in the trial of the case. It has also been submitted that to contradict these witnesses u/s 145 of the Indian Evidence Act, the re-examination of P.W.2 Dr. S.K. Agarwal, P.W.4 S.I. V.P. Singh and Investigating Officer of C.B.C.I.D., Ghanshyam Ahirwar is essential. By not summoning the aforesaid witnesses, the trial court has caused great injustice to the accused and thus, the impugned order may be quashed and trial court be directed to summon the aforesaid witnesses.
5. Per contra, learned counsel for the opposite party no. 2 and learned A.G.A. for the State have opposed this application u/s 482 Cr.P.C. on the ground that the applicants/accused have delayed the trial of the case by submitting various applications. It has been next submitted that on the application of the defence, the charge framed u/s 302 & 395 I.P.C. was converted to Section 396 I.P.C. on 13.10.2010. Thereafter, on the application of defence, vide order dated 20.10.2010, the court summoned P.W.1 Rajesh Kumar and P.W.3 Vijay Kumar for cross-examination. It has also been submitted that Ghanshyam Ahirwar, Investigating Officer of C.B.C.I.D. was not earlier summoned during trial. The defence has earlier filed application for summoning P.W.1 Rajesh Kumar and P.W.3 Vijay Kumar for re-examination which was rejected by the trial court vide order dated 18.02.2008 and the case was fixed for argument. It has further been submitted that P.W.2 Dr. S.K. Agarwal, who has prepared the postmortem report, was thoroughly examined by the defence on all points. Therefore, there was no justification in the prayer of defence for summoning the witnesses for cross-examination.
6. In support of his arguments, learned counsel for the applicants has relied on the following rulings :-
(i) Manju Devi Vs. State of Rajasthan and others, AIR 2019 SC 1976
(ii) Natasha Singh Vs. C.B.I. (State), 2013 Lawsuit (SC) 404
7. Learned counsel for the informant has also relied on the following rulings :-
(i) Swapan Kumar Chatterjee Vs. Central Bureau of Investigation, (2019) 0 Supreme (SCC) 319
(ii) Rajaram Prasad Yadav Vs. State of Bihar and Another, (2013) 0 Supreme (SC) 589
(iii) Bhim Singh Vs. State of U.P., 2022 (3) ADJ 87
8. In the case of Raghunandan Vs. State of U.P., (1974) 4 SCC 186, the Apex Court has held as follows :
"In a criminal case, the fate of the proceeding cannot always be left entirely in the hands of the parties. The court has also a duty to see that essential questions are not so far reasonably possible, left unanswered. The provisions of Section 311 are intended to serve this purpose."
9. Section 311 Cr.P.C. reads as follows :-
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.
10. This section is intended to be wide as the repeated use of the word "any" throughout its length clearly indicates. The section is in two parts, the first part gives a discretionary power but the second part is mandatory. The use of the word "may" in the first part and of the word "shall" in the second part firmly establishes this difference. The first part is permissive. The court may act in one of the three ways :
(a) summon any person as a witness,
(b) examine any person present in the court although not summoned, and
(c) recall or re-examine a witness already examined.
The second part i.e. if the evidence of such person appears to be essential to the just decision of the case, it is obligatory and compels the court to act in these 3 ways or any of them. There is no limitation on the power of the court arising from the stage to which the trial may have reached, provided the court is bonafide of the opinion that for the just decision of the case, the steps must be taken. The witnesses u/s 311 Cr.P.C. can be recalled for the benefit of accused and prosecution both. The only thing is that the court has to form a bonafide opinion as to the necessity of an order u/s 311 Cr.P.C.
11. In the case of Kamal Oil and Allied Industries (P) Ltd. Vs. Delhi Administration, 1982 Cr.L.J. 2046, the Delhi High Court has held as follows:
"The paramount consideration is doing justice to the case and not filling up the gaps in prosecution or defence evidence."
12. Considering the facts and circumstances of the case, it transpires that earlier charges against the accused were framed u/s 302 and 395 I.P.C. and P.W.1 Rajesh Kumar, P.W.2 Dr. S.K. Agarwal, P.W.3 Vijay Kumar and P.W.4 S.I. V.P. Singh were examined. Thereafter, vide order dated 13.10.2010, the trial court converted the charge against the accused and framed charge u/s 396 I.P.C. against them. The court vide order dated 13.10.2010 summoned P.W.1 and P.W.3 for cross-examination. Against the order of modification of charge u/s 396 I.P.C., the informant filed Criminal Revision No. 4882 of 2010, Rajesh Kumar Singh Vs. State of U.P. & Others and the High Court vide order dated 18.11.2010 stayed the trial of the sessions case. The aforesaid stay order was vacated in 2023 in compliance of the law propounded by Hon'ble Supreme Court in Asian Resurfacing of Road Agency Private Limited and Another v. Central Bureau of Investigation, (2018) 16 SCC 299. Thereafter, P.W.1 Rajesh Kumar and P.W.3 Vijay Kumar were cross-examined. The defence submitted application 354 Ka u/s 311 Cr.P.C. for summoning P.W.2 Dr. S.K. Agarwal, P.W.4 S.I. V.P. Singh and Investigating Officer of C.B.C.I.D., Ghanshyam Ahirwar who was not earlier examined as his role in the investigation of the case was inconsequential. From the aforesaid discussion, it is clear that the delay in trial of the session trial case occurred due to informant's filing of Criminal Revision No. 4882 of 2010, Rajesh Kumar Singh Vs. State of U.P. & Others and vide order dated 18.11.2010 passed by coordinate Bench of this Court staying the further trial of the related sessions trial case.
13. From the perusal of the cross-examination of P.W.1 Rajesh Kumar and P.W.3 Vijay Kumar which was done after modification of the charge, it transpires that the defence has cross-examined the aforesaid witnesses on the modified charge. Thus, to rebut the evidence of these witnesses u/s 145 of the Indian Evidence Act, defence should be granted opportunity to cross-examine P.W.4 S.I. V.P. Singh regarding statements of P.W.1 Rajesh Kumar and P.W.3 Vijay Kumar u/s 161 Cr.P.C. Since the earlier framed charge u/s 302 and 395 I.P.C. and the modified charge u/s 396 I.P.C. both of them relates to murder of a person, therefore, there is no need to summon P.W.2 Dr. S.K. Agarwal, who had conducted the postmortem of the deceased Ashok Kumar Singh and Layak Singh. Apart from this, the applicants have not given reasons why the cross-examination of P.W.2 Dr. S.K. Agarwal is necessary after modification of the charge. Therefore, summoning P.W.2 Dr. S.K. Agarwal u/s 311 Cr.P.C is not necessary and prayer of the applicant in this regard cannot be accepted.
14. As far as cross-examination of Investigating Officer of C.B.C.I.D., Ghanshyam Ahirwar, is concerned, he was not even examined earlier after framing of charge u/s 302 and 395 I.P.C. In the case of Sukhwant Singh Vs. State of Punjab, (1995) 3 SCC 367, the Apex Court has held that :
"a witness cannot be tendered for cross-examination alone. If he was not examined in chief, he cannot be subjected to cross-examination."
15. Thus, there is no ground to summon P.W.2 Dr. S.K. Agarwal and Investigating Officer of C.B.C.I.D., Ghanshyam Ahirwar. Admittedly, Investigating Officer P.W.4 S.I. V.P. Singh was retired when he appeared earlier in 2006 in court for examination. Earlier, after modification of the charge, defence had filed application for summoning of P.W.1 Rajesh Kumar and P.W.3 Vijay Kumar only. They had not prayed for summoning of P.W.2 Dr. S.K. Agarwal and Investigating Officer of C.B.C.I.D., Ghanshyam Ahirwar for cross-examination. Therefore, the court vide order dated 20.10.2010 had only summoned P.W.1 Rajesh Kumar and P.W.3 Vijay Kumar for cross-examination.
16. Under the facts and circumstances of the case, the applicants/defence shall be granted opportunity to examine P.W.4 S.I. V.P. Singh on payment of Rs.4,000/- as costs which shall be paid to the witness on his arrival. The aforesaid witness shall be examined on the same date and defence shall not be granted any adjournment for cross-examination of P.W.4 S.I. V.P. Singh.
17. Under unavoidable circumstances and not due to the default of the defence, if the cross-examination of P.W.4 S.I. V.P. Singh is not concluded on the date of his arrival, it shall be concluded on the next date subject to payment of additional cost of Rs.4,000/- to the witness.
18. Subject to aforesaid conditions, the present application u/s 482 Cr.P.C. is allowed in part regarding summoning of Investigating Officer, P.W.4 S.I. V.P. Singh. However, the prayer regarding summoning of P.W.2 Dr. S.K. Agarwal and Investigating Officer of C.B.C.I.D., Ghanshyam Ahirwar, is rejected.
Order Date :- 24.07.2023 KS