Allahabad High Court
Rajendra Kumar vs State Of U.P. on 12 September, 2022
Author: Ajai Tyagi
Bench: Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 88 Case :- APPLICATION U/S 482 No. - 25531 of 2022 Applicant :- Rajendra Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Samriddhi Upadhyaya,Yash Dev Upadhyaya Counsel for Opposite Party :- G.A. Hon'ble Ajai Tyagi,J.
1. This application u/s 482 Cr.P.C. is moved by applicant Rajendra Kumar against the State of U.P. being aggrieved with the order passed by Additional District and Sessions Judge, Court No.1, Ghaziabad on 02.08.2022 in S.T. No.1512 of 2005 (State vs. Manmohan and others), under Section 302 IPC, Police Station- Kotwali, District- Ghaziabad, whereby the application, moved by applicant-accused Rajendra Kumar, under Section 311 of Cr.P.C. for recalling PW1 Shiv Kumar Sharma was rejected by aforesaid trial court.
2. Heard Shri Sant Saran, Advocate appearing on behalf of Ms. Samriddhi Upadhyaya, assisted by Shri Yash Dev Upadhyaya, learned counsel for the applicant and Shri Mithilesh Kumar, Learned AGA for the State.
3. Brief facts of the case giving rise to this present application are that a first information report was lodged by Shiv Kumar Sharma against Manmohan @ Bittu, Rajendra @ Pappu and Satpal @ Santo u/s 302 r/w Section 34 IPC on 05.05.2005, in which averment was made that complainant Shiv Kumar had lent his shop to Ranjeet. Manmohan, brother of Surendra Bhola, had told him to get the shop vacated. Due to this cause persons became inimical and told him that he was with their enemies. On 5.5.2005, all the three accused with one more person came to his house to see his ailing father and after that at about 8:15 pm when they were returning, he and his brother Ashok @ Billu and Arjun Sharma went to see off them. When they reached on the road, all the three named accused with one more person dragged their country made pistols and fired at them with intention to kill. In this occurrence, the brother of complainant Ashok @ Billu sustained serious injuries and was declared dead in hospital. The scribe of the aforesaid FIR was Arjun Sharma.
4. Investigation was carried out and charge sheet was submitted by I.O. against the accused persons. Learned trial court framed charge under Section 302 r/w Section 34 IPC against all the accused persons. During trial, complainant Shiv Kumar Sharma was examined as PW1 and scribe of FIR Arjun Sharma was examined as PW2. Prosecution examined only two witnesses, namely, PW1 and PW2 as witnesses of fact and six other formal witnesses were examined. After completion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C. Accused persons were given opportunity for their defence.
5. After that an application u/s 311 Cr.P.C. was moved on behalf of the accused Rajendra Kumar for recalling PW1 Shiv Kumar Sharma for further cross-examination. The aforesaid application under Section 311 Cr.P.C. was rejected by learned trial court vide impugned order dated 2.8.2022. Aggrieved with impugned order, applicant-accused Rajendra Kumar moved this application u/s 482 of Cr.P.C.
6. Learned counsel for the applicant submitted that learned trial court has rejected the application without application of judicial mind only on two grounds, firstly, that cross-examination of PW1 has already been done on behalf of the accused persons and secondly, that the sessions trial is very old and pending since the year 2005 and one of the oldest matter of the court. Learned counsel for the applicant submitted that application should not have been rejected on the ground that the case is very old because on this ground justice should not be buried. Learned counsel for the applicant relied on the decision of Apex Court in Criminal Appeal N0.1021 of 2022 Varsha Garg Vs. State of Madhya Pradesh and others In SLP (Crl) No.2239 of 2022. Learned counsel for the applicant further submitted that in the aforesaid Sessions trial complainant Shiv Kumar Sharma has been examined as PW1 and scribe of FIR Arjun Sharma as PW2. In his examination-in-chief PW2 Arjun Sharma supported the prosecution case but in his cross-examination he has totally retracted from his statement in examination-in-chief and has denied of being eye-witness in cross-examination by saying that he had not seen the occurrence and he had heard only the sound of firing. He has specifically deposed that he knows the accused persons by name but had not seen anyone firing due to darkness. Learned counsel for the applicant argued that in this way PW2 has not supported the prosecution case in cross-examination but the prosecution did not make any prayer to get him declared hostile. Hence, it is necessary to further cross-examine PW1 with regard to the evidence of his presence on the spot because it is deposed that he had written the report on dictation of PW1 Shiv Kumar Sharma and he had written in the report whatever was dictated to him by PW1. Hence, further cross-examination of PW1 is essential on this point.
7. Learned counsel for the applicant next submitted that PW1 Shiv Kumar Sharma has himself made self contradictory statements in his deposition. PW1 has said in examination-in-chief that he and Arjun Sharma saved their lives by hiding behind the wall but in cross-examination he had deposed that they saved their lives by hiding behind wooden Takht. Hence, clarification of contradictions is necessary and for that purpose it is essential to recall PW1 for further cross-examination.
8. Learned counsel for the applicant submitted that these aforesaid questions and circumstances could not be asked from PW1 in cross-examination because the defence counsel was of old age and due to his advance age he could not cross-examine PW1 with regard to the aforesaid contradictions in the evidence of PW1 and PW2 and that later on the learned counsel is stopped coming to the court and accused persons changed their counsel and the new advocate moved application u/s 311 Cr.P.C. in the lower court after examining the file but the application was rejected by trial only on the ground that sessions trial is very old one and PW1 has already been cross-examined at length.
9. It is also submitted by learned counsel for the applicant that FIR is also ante time but questions in this regard was not asked from PW1 in cross-examination.
10. Learned counsel for the applicant said that at the time of disposal of application u/s 311 Cr.P.C., the trial court should have considered the essentiality of evidence for just decision of the case. It is also submitted that in the land mark judgement Mohanlal Shamji Soni Vs. Union of India (1991) Supp (1) SCC 271 guidelines were mentioned by Hon'ble Apex Court with regard to the exercise of power under Section 311 Cr.P.C. and emphasis was laid down that essentiality of 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. Broad power u/s 311 Cr.P.C. are to be governed by the requirement of the justice but the learned trial court did not consider the concept of essentiality of evidence to arrive at the just decision of the case. Hence, the impugned order to set aside and trial court to be directed to recall PW1 for further cross-examination.
11. Learned AGA objected to the submissions made by learned counsel for the applicant and at the outset submitted that the application u/s 311 Cr.P.C., which was moved by applicant in the lower court, does not contain questions which are proposed to be asked from PW1. Learned AGA submitted that in the application u/s 311 Cr.P.C., the applicant has to disclose as to what questions he proposes to ask from the witness but no such question is mentioned in the application moved by accused-applicant in this case, which means that if application is allowed then it will be open to the applicant to cross-examine the witness on any ground which is not the intention of provision of Section 311 Cr.P.C. and it is not permitted. Moreover, it is not mentioned in application as to what new evidence has taken place after completion of evidence of PW1. Learned AGA made submissions that there are two parts in Section 311 of Cr.P.C. In first part "may" word is given which means that it is the discretion of the court that it may or may not allow the application and in second part "shall" word is given, which means that it shall be obligatory on the court to recall the witness if evidence appears to be essential to the just decision of the case. But in this case nothing is shown by the applicant in the application regarding the essentiality of evidence. Learned AGA also submitted that the judgement of the Apex Court in Rajaram Prasad Yadav Vs. State of Bihar and others reported in 2013 14 SCC 461 has narrated several guidelines for deciding the application u/s 311 Cr.P.C. and one of the guidelines is that the exercise of the said power cannot be dubbed as filling up in a lacuna in a prosecution case unless the fact and circumstances make it apparent that the exercise of the power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
12. Learned AGA made further submission that change of the advocate is no ground for recalling any witness. Learned AGA relied on AG Vs. Shiv Kumar Yadav 2015 0 Supreme (SC) 875 and submitted that it is clearly held by Hon'ble Apex Court in the aforesaid judgement that mere change of the counsel cannot be ground to recall the witnesses. It is also submitted that even competency of the counsel was a subjective matter and this plea cannot easily be accepted. Learned AGA submitted that the aforesaid judgement of the Apex Court is followed recently by the High Court of Punjab and Haryana in Rajendra Trehan Vs. M/S HDFC Bank Ltd. 2022 LawSuit (P&H) 1635 and held that change of counsel is no ground for recalling of witnesses. In fact, the application u/s 311 Cr.P.C. is moved by accused-applicant to linger on the decision of the case.
13. Learned counsel for the applicant, in reply, submitted that primary factor for deciding the application u/s 311 Cr.P.C. is essentiality of evidence to arrive at to the just decision of the case and filling up the loop-holes and lacuna is merely subsidiary factor as held by Hon'ble Apex Court in Zahira Habibulla H. Sheikh Vs. State of Gujarat (2006) 3 SCC 374 and Godrej Pacific Tech. Ltd. Vs. Computer Joint India Ltd. (2008) 11 SCC 108.
14. I have carefully considered the rival submissions made by the parties as well as gone through the record.
15. The nature and scope of the powers to be exercised by the court under Section 311 Cr.P.C. was elaborately considered in the case of Rajaram Prasad Yadav v State of Bihar and another (supra) and after considering the earlier precedents, the principles to be followed by the courts with regard to exercise of powers under the said section have been explained and enumerated. It has been stated thus:-
"14. A conspicuous reading of Section 311 Cr P C would show that widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a prefix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the court was only in relation to such evidence that appears to the court to be essential for the just decision of the case.
Section 138 of the Evidence Act, prescribed the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 CrPC and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.
xxx
23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr P C read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts:
a) Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.
d) 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 for such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a 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.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
h) The object of Section 311 Cr P C simultaneously imposes a duty on the court to determine the truth and to render a just decision.
i) The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that 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.
k) The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
n) The power 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 care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."
16. There is no doubt in the legal position that Court has to bear in mind the essentiality of evidence for just decision of the case while deciding the application u/s 311 Cr.P.C. as held by Hon'ble Apex Court in catena of judgements and also the duration of a case cannot displace the specific requirement of just decision after taking all the necessary and material evidence on record as held by Hon'ble Apex Court in Manju Devi Vs. State of Rajasthan (2019) 6 SCC 203.
17. As far as the test of essentiality of evidence is concerned, it should also be kept in mind that no prejudice is to be caused to any of the parties. I am in full agreement with the contention of learned AGA that nothing is mentioned in application u/s 311 Cr.P.C. annexed as Annexure No.6 to the affidavit as to what questions applicant proposes to ask from PW1 if opportunity of further cross-examination is granted rather it is mentioned in the aforesaid application that facts and circumstances are not be enumerated because the defense of the accused will be disclosed. It means that if opportunity is given for further cross-examination and it will be open to the applicant-accused to cross-examine the witness on any point, which may take the shape of re-trial. Moreover, in this particular case since nothing is mentioned in application u/s 311 Cr.P.C. as to on what points questions are to be asked, during the course of the argument before this Court, learned counsel for the applicant has brought forward several contradictions in the evidence of PW1 and PW2. It is also submitted by the learned counsel for the applicant that PW2, scribe of the FIR, did not support prosecution in his cross-examination and prosecution did not request to the court for declaring him hostile. It is no concern of the accused whether prosecution is getting declared any witness hostile or not. It is the consideration of prosecution only. Learned counsel for the applicant has submitted that several self-contradictory statements have emerged in the evidence of PW1 on which questions are to be asked in further cross-examination. It is also submitted that questions are also to be asked with regard to the presence of PW2 at the scene of the occurrence when PW2 has denied the prosecution case in his cross-examination. In my opinion, all these aforesaid proposed questions or points are argumentative questions and points, which come in the category of loop-holes. Hence, the aid of Section 311 of Cr.P.C. cannot be given to the accused to fill up the loop-holes. The proposed points or questions, as told to this Court during the course of argument, do not come in the purview of essentiality of evidence. An application u/s 311 Cr.P.C. must not be allowed only to fill up the lacuna in prosecution case, or of the defense. Unfair advantage should not be given to any of the parties and the additional evidence must not be received as a disguise for re-trial as it would be if the application u/s 311 Cr.P.C. in this case is allowed. The Court has to bear in mind that opportunity of fair trial should be given to the accused, but it should also be kept in mind that the interest of victim also should not be prejudiced.
18. Learned counsel for the applicant has vehemently submitted and emphasized that all the questions and circumstances could not be put to PW1 in cross-examination because of the advance age of the counsel of the applicant-accused and application u/s 311 Cr.P.C. was moved by the new counsel. In this way, the competency of earlier counsel is also questioned by new counsel. The accused-applicant had appointed the advocate of his choice, who was given due and fair opportunity and thorough cross-examination of PW1 was conducted by him on various dates, way back in the year 2006 and 2007. No finding could be recorded that earlier advocate appointed by the accused-applicant was incompetent. Hence, in these circumstances mere change of advocate cannot be a ground to recall the witnesses. Needless to say that the powers of judicial supretendence under Article 227 of the Constitution of India and under Section 482 Cr.P.C. has to be exercised sparingly when there is apparent error or gross injustice in view taken by the subordinate courts. In the present case fair opportunity was granted to the accused and opportunity cannot be given to meet out the loop-holes in evidence by way of Section 311 Cr.P.C., which may cause prejudice to either of the parties.
19. In view of above discussion, this Court does not find any error in the impugned order and is not inclined to interefere with.
20. Accordingly, the application u/s 482 Cr.P.C. is dismissed.
21. It is made clear that observations made in this order shall be confined to the disposal of the aforesaid application u/s 482 Cr.P.C. only.
Order Date :- 12.9.2022 Ashutosh Pandey