Allahabad High Court
Yogendra Singh Dohare vs State Of U.P. on 9 August, 2010
Reserved
Criminal Revision No.278 of 2010.
Yogendra Singh Dohrey ....Revisionist.
Versus.
State of U.P. and others. ...Respondents.
Hon'ble Vedpal,J.
This revision under Section 397/401 of the Code of Criminal Procedure has been filed by accused Yogendra Singh Dohrey (revisionist herein) against the order dated 12.7.2010 passed by the Additional Sessions Judge/Special Judge, Ayodhya Prakaran, Lucknow in S.T.No.446 of 2009 : State Vs. Shekhar Tiwari and others and S.T.No.447 of 2009 : State Vs. Vibha Tiwari whereby the application moved by the accused under Section 311 Cr.P.C. for recalling P.W.-10 Shashi Gupta was rejected.
I have heard learned counsel for the revisionist as well as learned Special Counsel for the State who put up his appearance at the time of hearing this revision for admission. With the consent of the parties, this revision is being finally disposed of at this stage.
It reveals from the perusal of the record that the revisionist Yogendra Singh Dohrey is facing trial before Sessions Judge/Special Judge, Ayodhya Prakaran, Lucknow in S.T.No.446 of 2009 : State Vs. Shekhar Tiwari and others and S.T.No.447 of 2009 : State Vs. Vibha Tiwari relating to Crime No.299 of 2008 under Sections 147, 148, 149, 302, 323, 342, 457, 201, 120-B I.P.C. and 7 Criminal Law Amendment Act relating to Police Station Dibiapur, District Auraiya. It appears that in the trial pending before the court below, all the prosecution witnesses have been examined and the case was fixed for recording statement of accused persons under Section 313 Cr.P.C. At this stage, the accused moved an application on 12.7.2010 praying for recalling prosecution witness P.W.-10 Smt. Shashi Gupta for further cross examination on the point stated in the application. The application was opposed by the prosecution on the ground that the P.W.-10 Smt. Shashi Gupta had already been cross examined at length in about 46 pages and the application has been moved just to delay the proceedings of the case and further cross examination of P.W.-10 Smt. Shashi Gupta is not essential for the just decision of the case and the points setforth in the application under Section 311 Cr.P.C. are not material. The learned trial Judge after hearing the parties and going through the record of the case was of the view that it is not necessary to recall P.W.-10 Shashi Gupta and the application has no force and is liable to be rejected and accordingly the learned trial judge by his reasoned order, rejected the application. Feeling aggrieved with the said order, this revision has been filed.
1Learned counsel for the revisionist as well as the learned Special Counsel for the State were heard at length.
Learned counsel for the revisionist contended that after examination of P.W.-10, Smt. Shashi Gupta, the investigating officer Shri Sureshwar was examined as P.W.-19 and there are certain contradictions in the testimonies of these witnesses and it is necessary to cross examine P.W.-10 Smt. Shashi Gupta on this aspect. He further submitted that Smt. Shashi Gupta in Case Crime No.17 of 2009 : State Vs. YOgendra Singh and others under Section 3 (1) of U.P. Gangsters and Anti Social Activities ( Prevention ) Act had made statement under Section 161 Cr.P.C. and there are certain contradictions in her statement and the statement given in the court and it is also necessary to cross examine P.W.-10 Shashi Gupta on this aspect also and as such the impugned order rejecting the application of the revisionist is not legally tenable.
Learned counsel appearing for the State contended that once a witness has been examined and cross examined at length, such witness should not be recalled and re examined to deny the statement he had already given before any other court or forum even though it may be in consistent. It was further submitted that P.W.-10 Shashi Gupta was cross examined at length in about 46 pages and several questions were put to her on the factum on which the revisionist want to recall her for cross examination and the only purpose for moving this application is nothing but to delay the proceeding one or the other way. He further submitted that the impugned order passed by the learned trial court under Section 311 Cr.P.C. is an interlocutory order and a revision against it is not competent under the provisions of Section 397(2) Cr.P.C. He in support of his contentions relied on Hanuman Ram Vs. State of Rajasthan and others ( 2008) 15 SCC 652 and Sethuraman Vs. Raja Manickam (2009) 5 SCC 153.
I have carefully considered the respective submissions made by the parties in view of the law laid down by the Hon'ble Supreme Court in cases cited by the learned counsel for the State.
For the decision of the present controversy, it is necessary to go through the Section 311 Cr.P.C. which 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."
No doubt, Section 311 Cr.P.C. gives power to any court at any stage of an inquiry, trial or other proceedings under this Code to summon any person as a witness or examine any person in attendance though not summoned as witness or recall or re examine any person already examined, if it is of the opinion that the 2 evidence of that witness is essential for the just decision of the case. However, the court is required to exercise its discretion properly and judiciously. In the present case, P.W.-10 Smt. Shashi Gupta was cross examined at length. Searching cross examination was done with her on the factum of lodging the F.I.R. and other aspect of the case, Hon'ble Supreme Court in case Hanuman Ram (supra) in para 6 has held as follows :-
"6................Once the witness was examined-in-chief and cross examined fully, such witness should not have been recalled and re- examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently."
In this case, the learned court below had disposed of application under Section 311 Cr.P.C. by passing a reasoned and detailed order and he was of the opinion that it is not necessary to recall the witness. The determinative factor to recall the witness is whether the recall of the witness is essential to the just decision of the case. The learned court below has also taken this aspect of the matter into consideration and rejected the application. The order of the learned court below is in consonance with the observation made by the Hon'ble Supreme Court quoted above.
Furthermore, the order passed by the court below refusing to recall Smt. Shashi Gupta P.W.-10 for further cross examination under Section 311 Cr.P.C. is an interlocutory order and the revision against such an order is barred under Section 397 (2) of Cr.P.C.
A similar question was dealt with by the Hon'ble Supreme Court in case Sethuraman (supra) wherein Hon'ble Supreme Court has held as under :-
"Secondly, what was not realised was that the orders passed by the trial court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The trial court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent -accused and the only defence that was raised, was that his signed cheques were lost and that the appellant complainant had falsely used one such cheque. The trial court also recorded a finding that the documents were not necessary. This order did not, in any, manner, decide anything finally. Therefore, both the orders i.e. one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable."
In view of the above principal of law laid down by Hon'ble Supreme Court, the impugned order passed by the court below under the provisions of Section 3 311 Cr.P.C. is also an interlocutory order and the revision against this order is barred by the provisions of Section 397(2) Cr.P.C.
In the light of the facts stated, discussions made and reasons given above, this revision is devoid of any merit and is liable to be dismissed and the revision is therefore, dismissed in limine.
9.8.2010.
Shukla.
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