Allahabad High Court
Smt. Anita Agrawal vs State Of U.P. And Another on 24 November, 2020
Author: Deepak Verma
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 90 Case :- APPLICATION U/S 482 No. - 11808 of 2020 Applicant :- Smt. Anita Agrawal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anant Ram Gupta Counsel for Opposite Party :- G.A.,Anurag Dubey Hon'ble Deepak Verma,J.
Heard Sri Anant Ram Gupta, learned counsel for the applicant, Sri Anurag Dubey, learned counsel for the opposite party no.2, learned AGA on behalf of the State and perused the record.
This application u/s 482 Cr.P.C. has been filed by applicant to quash the order dated 27.02.2020 passed by Additional Session Judge, Court No.3, Firozabad in application under section 311 Cr.P.C. in Session Trial No.5586 of 2016 (State vs. Rohan Singhal and others ) arising out of Case Crime No.648 of 2016, under sections 364A, 302, 201, 404, 120B I.P.C., Police Station Tundla, District Firozabad has been rejected.
Learned trial court by order dated 27.02.2020 decided two applications i.e. Application No.143-B and Application No.144-B. Order in challenge before this Court by the present application is against rejection of Application No.144-B, not against 143-B, therefore, this Court has to consider the legality and illegality of the application of accused applicant under section 144-B. Learned counsel for the applicant submits that on 24.08.2016 informant lodged FIR under section 364-A against three persons namely, Rohan Singhal, Pawan and Anuj Vij, alleged therein that he saw deceased Aditya, Rohan and Rohan's elder brother Pawan altogether were coming out from Orchid Green. Deceased Aditya on 22.08.2020 at about 8.30 went to Gim (Gymnasium) to exercise by his I-Ten Car No.UP 33A 1782 but he did not come back. At about 11.07 informant received SMS from unknown number that we caught your son and threatened them not to inform police. Thereafter again call came from Mobile No.9756674130 and they informed about deceased Aditya's car location and demanded Rs.10 crore and threatened if demand is not fulfilled, Aditya might be killed. When mother of Aditya enquired from Anuj, they did not talk properly.
Investigating officer after collecting evidence submitted chargesheet and charges were framed and trial started as S.T. No.5586 of 2016 under sections 364A, 302, 201, 404, 120-B I.P.C. started against applicant and other co-accused. Learned counsel for the applicant further submitted that the applicant has taken plea of alibi before trial court and at present prosecution examination is going on which is clear from the rejection order. During prosecution examination, applicant moved application under section 311 Cr.P.C. with the prayer to just decision of case, summon the noted witnesses and original record given below:-
(i) Compete detail of payment of original statement account no.344104000004633 of Sri Pavan Singhal by the manager of I.D.B.I. Bank Branch Station Road Ganesh Nagar firozabad from 15.08.2016 to 25.08.2016.
(ii) Compete detail of staying bill No.1373 folio no.4471 in register no.3608 room no.402 of the manager of Hotel Willo Bans Tourism near left Mal Road Shimla, Himachal Pradesh.
(iii) Complete original record with detail of Ticket of helicopter passenger namely (1) Aghira Singhal (2) Pawan Singhal (3) Anita Agrawal and (4) Richa Singhal, P.N.R. number M.V.D.H. 1716822 Booking dated 1.8.2018 travelling dated 23.01.2016 and cancellation of said Passengers of Officer Incharge Hemalayan Helicopter services Sri Mata Vaishanav Devi Shrine board Centre Office Katra, District Ricy Jammu-Kashmir.
(iv) Original record relating to travel on yamuna Express way about Car Registration no.U.C.S.0097884 from 20.8.2016 to 24.8.2016 Application filed by Pavan Singhal before Chief Executive Officer Yamuna Express way Industrial Development Authority first floor commercial complex Block P-2 Sector Amega-1, Greater Noida PIN Code No.201308 District Gautam Buddh Nagar dated 1.8.2017.
(v) Local editor of News paper "Amar Ujala" including copy of said News paper from "23.8.2016 and 24.8.2016" gopal Ashram market, Amar Ujala Office, Firozabad.
(vi) Local Editor of News paper "Dainik Jagaran (I.C.I. upper floor of A.T.M.) Suhag Nagar Firozabad including copy of said news paper dated 24.08.2016. For the proper and just decision and stay the further proceeding of S.S.t. No.5586 of 2016, Case Crime No.648 of 2016 under sections 364A, 302, , 404, 120B I.P.C., P.S. Tundla District Firozabad (State vs.Rohan Singhal and others) during the pendency of this Criminal Misc.Application (U/sa 482 Cr.P.c.) before this Hon'ble Court.
Learned counsel for the applicant further submitted that trial court after giving opportunity to opposite party and hearing both the parties, rejected the application of the applicant without applying his judicial mind and arbitrarily and without considering the fact that the applicant wanted to prove his alibi plea by summoning the witnesses and documentary evidence and witness having documents which are required to be proved the alibi as the case of the applicant is that he was not present at the place of incident she alongwith her son and daughter-in-law went to visit Mata Vasnaodevi at Jammu-Kashmir and documents which had been asked to be summoned are essential to just and fair decision of the case and file present application on following grounds which is clear from the provision of Section 311 Cr.P.C. that section in two parts. First part gives purely discretionary power to the courts and enables it to summon the material witness at any stage of enquiry, trial or proceedings, on the other hand second part is mandatory and compels to take any step if it is essential to do the justice. Hon'ble Apex Court held in various decision that the object of Section 311 Cr.P.c. is to avoid the failure of justice power provided under section 311 Cr.P.C. is to be exercised judiciously in this regard. It has been held that whether it is essential to be just decision of the case. He further submitted that it is well settled that exercising power under section 311 Cr.P.C. should be restored to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case. It is argued that it is a cardinal rule in the law of evidence that the best available evidence should brought before the court to prove a fact or the points in issue but it is left either for the prosecution of for the defence to establish its respective case by adducing the best available evidence and the court is not empowered under the provisions of the code to compel either the prosecution or the defence to examine any particular witness or witnesses of their sides. It is the duty of a court not only to do justice but also to ensure that justice is being done.
Learned counsel for the applicant has placed reliance upon the judgments of Hon'ble Apex Court in Union Territory of Dadra & Haveli & Anr. vs. Fatehsingh Mohansinh Chauhan reported in 2006(3) JIC 75 Supreme Court, in which respondent accused raised the plea of alibi and claimed that he was present in the chamber of Sri S.P.Marwah, the then Collector, Dadra and Nagar haveli, Silvassa as a meeting has been called there being a prominent member of a political party he participated and he took plea of alibi under section 311 Cr.P.C. Hon'ble Apex Court allowed the application of the accused-applicant and summon the collector as witness. Hon'ble Apex Court considered various judgments of Hon'ble Apex court in paragraph 10, 11, and 12. The same is reproduced below:-
10. In Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178 after analysis of the provision of Section it was held as under in para 10 of the reports :
"Section 540 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 latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways : (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them if the just decision of the case demands it. As the section stands 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 bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to some thing in the interest of the accused only. The action may equally benefit the prosecution. ..............."
11. 11. In Mohanlal Shamji Soni v. Union of India & Anr. AIR 1991 SC 1346 it was observed that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of a Court not only to do justice but also to ensure that justice is being done. It was further held that the second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. It was emphasized that power is circumscribed by the principle that underlines Section 311 Cr.P.C., namely, 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. Further, that the power must be used judicially and not capriciously or arbitrarily. It was further observed that evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties and the discretion of the Court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case.
Rajendra Prasad v. Narcotic Cell (1999) 6 SCC 110 is a decision where the contention that the prosecution should not be permitted to fill in lacuna was examined having regard to the peculiar facts where the exercise of power under Section 311 Cr.P.C. second time was challenged and, therefore, it is necessary to notice the facts of the case in brief. The accused along with some other persons was facing trial for offences under Sections 21, 25 and 29 of the NDPS Act. The prosecution and the defence closed their evidence on 19.9.1997 and the case was posted for further steps and on 7.3.1998, after few more dates, at the instance of the prosecution two witnesses who had already been examined were reexamined for the purpose of proving certain documents for prosecution. After they had been examined and the evidence had been closed, the case was posted for hearing arguments, which was heard in piecemeal on different dates. Subsequently on 7.6.1998, the Public Prosecutor moved an application seeking permission to examine Dalip Singh, S.I. and two other persons. Though the application was strongly opposed by the counsel for the accused, the trial Court allowed the same in exercise of its power under Section 311 Cr.P.C. and summons were issued to the witnesses. The challenge raised to the order of the learned Sessions Judge by filing a revision was dismissed by the High Court. In appeal before this Court it was contended that in the garb of exercise of power under Section 311 Cr.P.C., a Court cannot allow the prosecution to re-examine prosecution witnesses in order to fill up lacuna in the case specially having regard to the fact that Dalip Singh witness was never tendered by the prosecution for cross-examination and PW.4 Suresh Chand Sharma had also not been cross-examined by the State. Repelling the contention raised on behalf of the accused it was held :
"7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not "fill the lacuna in the prosecution case". A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up.
8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."
Finally, it was held that the proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, cannot be accepted nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during arguments. Similar view has been taken in P. Chhaganlal Daga v. M. Sanjay Shaw (2003) 11 SCC 486 where permission granted by the Court to a complainant to produce additional material after evidence had been closed and case was posted for judgment was upheld repelling the contention that production of the document at that belated stage would amount to filling in a lacuna.
12. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the Court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in prosecution case" unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused resulting in miscarriage of justice.
This Court in Arslan Zaheer vs.State of U.P. & another reported in 2016 (2) JIC 189 (Allahabad). In this case allegation against the accused is that he kidnapped victim girl but the case of the accused was that victim girl went with the applicant on her own volition and stayed in Hotel at Allahabad and where she had filled hotel register in her own handwriting.
Per contra, learned AGA as well as learned counsel for the informant opposed the contention raised by the learned counsel for the applicant. Learned counsel for the opposite party no.2 opposed the application by way of filing reply inter-alia on the ground that application has been filed with a view to delay the proceeding and to fill up lacuna, as such, same deserves to be dismissed. Learned court below taking note of the pleadings, adduced on record by respective parties, dismissed the application by concluding that applicant-accused cannot be allowed to fill up lacuna in defence. He further submitted that by way of counter affidavit, he has given various facts which has not been disclosed by learned counsel for the applicant as in para 5 of the counter affidavit that many adjournments have been taken from the side of the applicant-deceased, which is evident from perusal of the order-sheet of the trial. He further pointed out that those adjournments were being sought before spreading of pandemic Covid-19. He stated that intention of the accused persons is that they are not interested to conclude the trial. He further submitted in para 7 of the counter affidavit that accused persons moved various applications on different issues to delay the trial. An application moved before the learned trial court under section 311 Cr.P.c. to recall the P.W.-2 on the ground of changing the counsel for the accused and when the same was rejected vide order dated 20.03.2018, then that order was challenged before this Court with an affidavit. Thereafter opposite party no.2 moved an application by means of Criminal Misc.Application u/s 482 Cr.P.C. No.28264 of 2018 before this Court with a prayer that a direction be issued to the court below to decide S.S.T. No.5586 of 2016 (State vs. Rohan Singhal and others) within a definite period. The same was disposed of on 16.08.2018 with the direction to the court below to decide aforesaid case in accordance with law without granting unnecessary adjournments to either of the parties as expeditiously as possible preferably within a period of eight months from the date of production of certified copy of this order. When order dated 16.08.2018 passed by this Court was not complied with thereafter opposite party no.2 moved Contempt Application (Civil) No.3817 of 2019 before this Court and same was disposed of as the presiding officer to finalize the proceeding in question expeditiously preferably within three months without according even a single adjournment to either of the parties and if necessary day to day hearing may be ensured in the matter so that the order in question must be complied with.
Learned counsel for the opposite party no.2 submitted that applicant-accused by way of application under section 311 Cr.P.C. several documents have sought to be summoned. First is statement about bank account of Pavan Singhal which is in possession of Pavan Singhal and this is the banking record approved by the banking authorities, hence there is no need to call the banking authority before the learned court below to prove the same. With regard of her journey alongwith the co-accused Pavan Singh and family collected through the Right to Information Act they had been provided hence, there is no need to verify and prove the same by the authorities of the Yamuna Expressway and regarding service of Helicopter to Mata Vashno Devi which was booked on 9th thereafter it was cancelled. Booking online and obtaining PNR number is not the perfect evidence to prove that a person who booked the ticket boarded on the same because of the ticket of the service of the Helicopter. Ticket of the service of the Helicopter was booked through online and the said booking may be done from the home of anyone. Thereafter the applicant wanted to summon the original record relating to travel of Yamuna Expressway.
Learned counsel for the opposite party no.2 replied in para 12 of the affidavit that the applicant now claimed that she alongwith co-accused went to Shimla where she stayed in a Hotel. Thereafter other information are based on newspaper which are not admissible in evidence. He further submitted that statutory admissibility of records which are required by the applicant and co-accused are statement of the bank account, documents of the helicopter services, documents provided by the Yamuna Expressway authority under R.T.I. Act are procurable so there is no need to summon the officer concerned to proof the same. If the applicant wants to produce defence witnesses then she or other co-accused has liberty to produce them as defence witnesses before the trial court and there is no need to call them as Court witnesses to prove the documents submitted by the applicant at the stage of prosecution witnesses. Applicant by way of this application only try to delay the trial.
I have heard learned counsel for the parties and gone through the record carefully.
It has been repeatedly held by the Hon'ble Apex Court as well as this Court that lacuna in the prosecution must be construed to be an inherent weakness in the case and a latest wedge in the prosecution case and advantage of it should normally go to the accused in the trial of the case.
To verify the fact, it is relevant to consider Section 311 Cr.P.C. which are reproduced here-in-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."
A bare perusal of Section goes to show that it is divided in two parts. In the first part, the word used is "may" and thereby giving jurisdiction to the Court to pass order as per its discretion and the second part uses the word "shall" which makes obligatory for the Court to pass such order. The provision of Section 311 Cr.P.C., thus, first is a supplementary provisions enabling and in certain circumstances imposition on the Court with the duty of examining a material witness who could not brought before it. It is couched in the widest possible terms and clause for non limitation either with regard to the stage of the trial nor with regard to the manner, it should be exercised.
It is true that the power of the Court under Section 311 Cr.P.C. is of a very wide in nature but in what manner such power should be exercised has been a matter of discretion before the superior Courts.
In the case of Hanuman Ram vs. State of Rajasthan and others 2009 (64) ACC 895, the Hon'ble the Apex Court has laid down as to what is the object of the Section 311 Cr.P.C and how the discretion provides thereunder should be exercised. Para 6 of the judgment reads as follows:
"The object underlying section 311 of the Code 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 section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Court to issue summons to any witness at any stage of such proceedings, trial or enquiry. In section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as wide the power the greater is the necessity for application of judicial mind."
Again in the case of Vijay Kumar vs State of U.P and others (2011) 11 SCR Page 893, the Hon'ble the Apex Court has held as follows:
"It is hardly needs to be emphasized that power under Section 311 should be exercised for the just decision of the case. The wide discretion conferred on the court to summon a witness must be exercised judicially, as wider the power, the greater is the necessity for application of the judicial mind. Whether to exercise the power or not would largely depend upon the facts and circumstances of each case. As is provided in the Section, power to summon any person as a witness can be exercised if the court forms an opinion that the examination of such a witness is essential for just decision of the case."
At another place of the same judgment the following observation has been made by Hon'ble the Apex Court:
"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 of 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."
The Apex Court while upholding as above observed that in the application to recall the witnesses, no specific reasons were mentioned as to how the examination of the witnesses proposed to be summoned was necessary and arrived at the conclusion and after discretion that the power under section 311 of the Code of Criminal Procedure 1973 were exercised arbitrarily by the Court."
In Darya Singh and others Vs. State of Punjab, AIR 1965 SC 328 a Full Bench of the Apex Court has held as under:-
"In our opinion, this argument is entirely misconceived. It is well settled that in a murder case, it is primarily for the prosecutor to decide which witnesses he should examine in order to unfold his story. It is obvious that a prosecutor must act fairly and honestly and must never adopt the device of keeping back from the Court eye-witnesses only because their evidence is likely to go against the prosecution case. The duty of the prosecutor is to assist the court in reaching a proper conclusion in regard to the case which is brought before it for trial. It is no doubt open to the prosecutor not to examine witnesses who, in his opinion have not witnessed the incident, but normally he ought to examine all the eye-witnesses in support of his case. It may be that if a large number of persons have witnessed the incident, it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient witnesses from the witness-box. If at the trial it is shown that persons who had witnessed the incident have been deliberately kept back, the Court may draw an inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case. In such a case if the ends of justice require, the Court may even examine such witnesses by exercising its power under Section 540; but to say that in every murder case, the Court must scrutinise the police diary and make a list of witnesses whom the prosecutor must examine is virtually to suggest that the Court should itself take the role of a prosecutor. The powers of the Court under Section 540 can and ought to be exercised in the interests of justice whenever the Court feels that the interests of justice so require, but that does not justify Mr. Bhasin's contention that the failure of the Court to have exercised its power under Section 540 has introduced a serious infirmity in the trial itself."
In Moirangthem Tomba Singh Vs. State of Manipur, 1984 Cr.L.J. 536 it has been observed as under:-
"That apart as submitted by the learned public prosecutor, reviewing on the decision Darya Singh v. State of Punjab (AIR 1965 SC 328) : 1965 (1) Cri LJ 350). The duty of the prosecution is normally to examine all the eye-witnesses but if the selection was made fairly and honestly and not with a view to suppress inconvenient witness from the witness box no adverse inference could be drawn against the prosecution."
The Hon'ble Apex Court in the case of Natasha Singh Vs. C.B.I., reported in 2013 (2) UPCr.R 605, has stated that 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 Cr.P.C. 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 Cr.P.C. 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.
It is apparent from the impugned order passed by the court below that accused had enclosed the list of documents which he wanted to summon are related with Right to Information Act which legal admissibility is not doubtful and others are relating to newspaper which are not admissible in evidence and the documents which related bills of expenses of travel and hotels would not required to be summoned and further coordinate Bench of this Court directed the court below to expedite the matter and the accused-applicant would have opportunity to put all this in defence and thereafter prosecution will have to cross them. The accused having opportunity to state under section 313 Cr.P.C. Regarding his alibi as defence, thereafter he could produce documents as defence. No doubt, while exercising power under section 311 Cr.P.C. Paramount consideration of the court should be to do justice to the case and the court can summon a witness at any stage, if same is filling up lacuna or loopholes. Similarly, this Court has also held that material essential for just decision of the case ought to be taken on record. However, in the case at hand, this court having carefully perused the explanation rendered in the application filed under section 311 Cr.P.C. as well as reasons recorded by the learned Special Judge in support of his decision finds no occasion to summon the documents as required by the applicant.
Learned counsel for the applicant has placed reliance upon the judgements of the Apex Court and this Court. In both the cases facts are totally different from the present case. In the case of Union Terretory of Dadra & Haveli (supra), the accused-applicant took a plea of alibi in his statement under section 313 Cr.P.C. which was recorded after close of prosecution evidence and submitted that he is a prominent member of political party and at the time of incident he was present in the chamber of Collector. In the present case, the applicant will have opportunity to take plea of alibi and thereafter he may produce evidence as per requirement. In the case of Arslan Zaheer (supra), the applicant moved an application under Section 311 Cr.P.C. to summon the register of the hotel for the purpose of cross examination as the accused has to proof his innocence because accused was trapped in kidnapping case, on his defence he had to prove that victim/girl was gone with her own volition along with co-accused and stayed in hotel and filled up hotel register documents in her own handwriting.
The power under section 311 Cr.P.C. is the discretion or the obligation of the Court to summon or recall a witness, but this discretion of the Court cannot be forced to be used by the accused or the prosecution. While considering the present case it is clear that the document which are required to be summoned are having in possession of the applicant-accused and they have got information under Right to Information Act and documents which relate to newspaper are not admissible in evidence not required to summon and further Hon'ble coordinate Bench of this Court had directed to expedite the trial. The applicant-accused have opportunity to put his case of alibi at the time of statement under section 311 Cr.P.C. and produce the documents as defence evidence.
Considering the facts of the cases and in the end, I do not find any illegality in the impugned order requiring any interference by this Court in exercise of inherent power under section 482 Cr.P.C. and consequently, the prayer for quashing the impugned order dated 27.02.2020 passed by Additional Session Judge, Court No.3, Firozabad in application under section 311 Cr.P.C. in Session Trial No.5586 of 2016 (State vs. Rohan Singhal and others ) arising out of Case Crime No.648 of 2016, under sections 364A, 302, 201, 404, 120B I.P.C., Police Station Tundla, District Firozabad, is refused.
The present 482 application lacks merit and is, accordingly, dismissed.
Order Date :- 24.11.2020 SKD