Allahabad High Court
Adil Husain And 2 Others vs State Of U.P. And Another on 7 September, 2020
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 75 Case :- CRIMINAL REVISION No. - 4844 of 2019 Revisionist :- Adil Husain And 2 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sufia Saba Counsel for Opposite Party :- G.A. Hon'ble Ajit Singh,J.
Heard learned counsel for the revisionists, Sri Mustakin Ahmad, learned counsel for the opposite party no.2 and learned A.G.A. for the State.
The present revision has been filed to allow the revision and set aside the order dated 04.12.2019 passed by learned additional District & Session Judge, (Fast Track Court) 1st District Amroha in Session Trial No.22 of 2019 (State Vs. Adil Husain and others), under Sections 304-B, 498-A I.P.C. & 3/4 Dowry Prohibition Act, Police Station Amroha Nagar, district Amroha (Jyotiba Phule Nagar) arising out of Case Crime No.735 of 2018, under Sections 304-B, 498-A I.P.C. & 3/4 Dowry Prohibition Act, Police Station Amroha Nagar, district Amroha (Jyotiba Phule Nagar) whereby the application under Section 311 Cr.P.C. has been rejected.
Learned counsel for the revisionists submits that the learned counsel for the accused/revisionists has not appeared before the Court concerned and due to the lapse on the part of their counsel, the accused should not be made to suffer in the above mentioned session trial.
Learned counsel for the opposite party no. 2 as well as learned A.G.A. have vehemently opposed but have admitted that the prosecution witnesses PW-4, PW-5 and PW-6 are the main witness of this case and they have not been cross-examined.
Now, this Court takes into consideration Section 311 of The Code Of Criminal Procedure, 1973, which reads as 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. 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."
In Natasha Singh v. CBI, (2013) 5 SCC 741, the Supreme Court has discussed the scope and object of Section 311 of the Code of Criminal Procedure, 1973 and held that the discretionary power of the Court should be exercised judiciously and not arbitrarily so as to enable the Court to determine the truth and render a just decision. The Supreme Court held as under:-
"8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact 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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15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC 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 great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."
From a perusal of the impugned order in the present case, it is evident that the learned trial court has rejected the application filed under section 311 Cr.P.C. merely on the ground that the accused persons have tried to misuse the discretionary powers of the trial court given to it under said Section just to linger on the trial proceedings. However, the learned trial court has neither discussed nor considered as to what would be the effect and outcome of the cross-examination of the PW-4, PW-5 and PW-6 on the trial if the revisionists are allowed to cross-examine and it would help and facilitate the trial court to take a right and just decision or not, this important aspect of the matter has also not been discussed and considered by the learned trial court while passing the impugned order. In the case of Satnam Singh and others Versus State of U.P. and another, 2010(3) JIC 818 (All) in paragraphs 12 and 13 this Court has observed thus:-
"12. The impugned order dated 21-7-2010 passed by Additional Sessions Judge/FTC No. 1 is set aside and learned Judge is directed to provide an opportunity to the accused persons for cross-examination of P.W. 2, Kashmir Singh.
13. I may also remind the trial Court that though the Fact Track Courts are meant to dispose off Sessions Trial at a quick pace but it does not mean that procedure of trial should be short circuited. More often a short-cut some times becomes a long-cut."
In view of the above discussion as also taking into consideration the ratio laid down by this Court in the case of Deshraj Vs. State of U.P. and others, 2013 (80) ACC 892 cited by the learned trial judge in the impugned judgment as well as considering the rival submissions, this Court deems it fit to allow one more opportunity to the accused persons/revisionists for cross-examination of PW-4, PW-5 and PW-6 subject to the payment of cost of Rs.15,000/- which will be paid to the PW-4, PW-5 and PW-6 Rs.5,000/- each. The trial court concerned will fix a date calling upon the aforesaid prosecution witnesses and on the said date all the three prosecution witnesses will be cross-examined and the trial court concerned will conclude the trial on day to day basis. There should be endeavour of the trial court to do the justice and it should not go by mere technicalities.
With the aforesaid observations, the revision is disposed of finally.
Order Date :- 7.9.2020 R./LBY