Allahabad High Court
Updesh @ Shibbe vs State Of U.P. And Another on 7 September, 2018
Equivalent citations: AIRONLINE 2018 ALL 3781, 2019 CRI LJ 521, (2018) 191 ALLINDCAS 907 (ALL), 2018 (6) ALJ 527, (2019) 2 ALLCRILR 773, (2018) 3 ALLCRIR 2377, (2019) 106 ALLCRIC 177, (2018) 105 ALLCRIC 239
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 49 Case :- CRIMINAL REVISION No. - 2869 of 2018 Revisionist :- Updesh @ Shibbe Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Upendra Upadhyay Counsel for Opposite Party :- G.A. Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the parties.
2. The present criminal revision has been filed to quash the order dated 07.08.2018 passed by the Addl. Sessions Judge/Fast Track Court, Mainpuri in Session Trial No. 652 of 2013 (State Vs. Updesh @ Shibbe & Others), arising out of Case Crime No. 243 of 2013, under Sections- 147, 148, 149, 307, 302, 504, 506, 120-B I.P.C. and 7 Criminal Law Amendment Act, Police Station- Kishani, District- Mainpuri by which the learned Court below has rejected the prayer made by the defence for recall of three prosecution witnesses namely PW-1, PW-2 and PW-3 upon alteration of charge made on 30.07.2018.
3. Short submission advanced by Shri. Upendra Upadhyay learned counsel for the applicant is:- though the applicant had been charged vide order dated 17.02.2014, amongst others for offence alleged under Section 302 IPC read with Section 120-B IPC, however, by the subsequent order dated 30.07.2018, after evidence had been recorded, the charge was altered. In such fact, learned counsel for the applicant submits that the applicant was entitled to recall the prosecution witness of fact, more as a matter of right and less as a matter of discretion to be exercised by the learned Court below.
4. In this regard, reliance has been placed on Section 217(a) Cr.P.C. It is further submitted that the learned Court below has not recorded any specific reason in writing, either that the defence was seeking to recall the prosecution witness for the purpose of vexation or to cause delay or to defeat the ends of justice. Merely, because the learned Court below observed that certain prosecution witness had been earlier examined on the aspect of conspiracy, it would not justify the denial of the statutory right of the defence/accused person to seek recall of the prosecution witness, though no fresh trial may have been directed and though the prosecution, may have waived its right to further examine the witness.
5. Sri A.B. Maurya, Advocate and Sri Narendra Kumar Maurya, learned counsel appearing for the opposite party no. 2 would contend that there is no material alteration of the charge and only certain errors had been rectified and; all aspects of cross-examination had been covered during the original cross-examination. Therefore, by seeking further cross-examination, without first disclosing any specific question, the applicant only sought to delay the trial proceedings that have remained pending since 2013. It is further stated that the trial has remained pending despite many orders passed by this Court.
6. Sri Sanjay Kumar Singh, learned AGA has also supported the contention advanced by learned counsel appearing for the opposite party no. 2. He submits that neither any new charge with reference to a new offence or section had been added by way of altered charge nor any new person had been summoned or charged as an accused person. Therefore, the applicant who is an accused person would not be entitled to recall of the prosecution witness.
7. Having considered the arguments so advanced by learned counsel for the parties, it is undisputed that originally, by order dated 17.02.2014, the applicant had been charged as below:
"यहकि उपरोक्त दिनांक समय एवं स्थान पर आपने वादी के भाई अशोक कुमार की हत्या करने के उद्देश्य से आपराधिक षड़यंत्र की संरचना की इस प्रकार आपने भ०द०स० की धारा १२० बी के अंतर्गत दंडनीय अपराध किया जो इस न्यायालय के प्रसंज्ञान में है"
8. The trial was held and evidence was also received, amongst others, on that charge. Thereafter, by order dated 30.07.2018, the aforesaid charge stood modified as below:
"यहकि दिनांक २१.०७.२०१३ समय करीब ५:३०-६:०० बजे ठेका देशी शराब शमशेरगंज थाना किशनी जिला- मैनपुरी सीमान्तर्गत आप उपदेश उर्फ़ शिब्बे ने राजेश चौबे, अनूप कुमार उर्फ़ कन्हैया तिवारी व अमित मिश्रा के साथ मिलकर वादी मुकदमा के भाई अशोक प्रधान की हत्या कारित कराने का, जो कि भ०द०स० की धरा- ३०२ के अंतर्गत दंडनीय अपराध है, का अपराध कारित कराने का आपराधिक षड़यंत्र है, जो कि इस न्यायालय के प्रसंज्ञान में है"
9. Clearly, the date, time and place of the occurrence and or the conspiracy has been first specified in the charge framed on 30.07.2018 and not earlier. Also, it is undisputed that the entire evidence had been led and the prosecution witness had been examined and cross-examined, prior to the date 30.07.2018. Coupled with the above, it is noted, the applicant is facing trial for a heavy charge of offence under Section 302 IPC read with Section 120-B IPC.
10. Thus, it appears, in the first place, the charge had been materially altered, by order dated 30.07.2018 in so far as the specification of the date, place and time was made. By very nature, these relevant facts were introduced by that order and they would now have to be proved by the prosecution to secure the conviction of the applicant. It also appears the prosecution seeks to rely upon evidence already led by it. However, the applicant had not been confronted with this specific charge, prior to 30.07.2018. Therefore, the fact that the prosecution may have waived its right to further examine any witness (since the prosecution, though entitled, neither applied to the learned court below, nor protested at being not allowed a further opportunity to lead evidence), cannot impair or affect, in any manner, the near absolute right of the defence to seek further cross-examination of any witness. In any case, the right of the defence to claim such further cross-examination is not dependent on the conduct of the prosecution, rather, it appears to be a rule against prejudice. The right arises, as soon as the charge is modified and or altered.
11. The fact that some statements may have been made by the witness, in light whereof the prosecution does not seek further examination of its witness, is a matter of choice exercised or waiver made by the prosecution, as to its rights in that regard. Also, the opinion of the prosecution and/or the trial court - since the defence had already cross-examined those witness, no further cross-examination is required, is, extraneous or misplaced and in any case, premature. It cannot be denied, that upon its alteration, the charge had been made specifically with reference to date, place and time of occurrence. Though in the opinion of the trial court, a fresh trial was not required and to that extent, the applicant is also not aggrieved, yet, as a direct result of that alteration, the defence did acquire a right to seek further cross-examination of the witness. To that extent, the provision of section 217 Cr.P.C. is mandatory. That right may be limited in its exercise only on grounds mentioned in section 217 and on no other. In the present case, those grounds have not been invoked and the impugned order does not arise on such grounds.
12. Also, the right of the defence to seek further cross-examination under section 217 Cr.P.C. is different and distinct from rights arising under section 311 Cr.P.C. and section 319 Cr.P.C. While section 311 Cr.P.C. applies to a case where there has been no alteration of charge, the burden to establish the need to recall a witness, therefore, rests exclusively on the party seeking such a recall. Under section 319 Cr.P.C., a person who is first summoned as an accused person, midway during a trial, is not expected to join an ongoing train journey, but he is entitled to get the evidence recorded afresh, in his presence. Therefore, on principle, the learned AGA does not appear to be correct in his submission that only if a new charge for a new offence is introduced or if a new person is roped in as an accused, that recall of witness will be warranted. Those are only two of the many circumstances when a charge may be said to have been altered. Section 217 Cr.P.C. has not restricted its application to fact situations contemplated section 319 Cr.P.C. and it is not governed by principle for invoking section 311 Cr.P.C. It is an independent provision.
13. The present situation also involves alteration of charge, in as much as upon specification of the place, date and time of occurrence and/or conspiracy, the imputation of the original charge had changed. It now involved proving of other facts as well. This change is not one arising out of a simple rectification of a mistake or error in the charge originally framed. Also, looking at the nature of heavy charge being faced by the applicant and in view of the prime importance to ensure unimpeachable credibility and fairness of the procedure followed in such a criminal trial, it would have been, even otherwise in the interest of justice to allow the defence a further opportunity to cross-examine the prosecution witness, even if there existed any doubt with respect to the effect of alteration of the charge. In the facts of the case, noted above, it was not for the trial court to itself first alter the charge; evaluate its effect and; to further form an opinion that sufficient cross-examination had already been made by the defence, at this stage itself. Such procedure, if allowed, may allow prejudice to creep in, even though inadvertently.
14. In Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392, in the context of sections 216 and 217 Cr.P.C., the Supreme Court held :
"23. ........................................................................On a combined reading of the above two sections it is, therefore, evident that after an alteration or addition of the charge the interest of the prosecution and the accused has to be safeguarded by permitting them to further examine or cross-examine the witness already examined, as the case may be, and by affording them an opportunity to call other witnesses."
15. Thus, in the context of the charge being faced by the applicant and in view of the clear language of Section 217 Cr.P.C., the applicant had to be granted a right to further cross-examine the prosecution witness, however, with a caveat that the learned Court below may not allow the applicant to re-examine the same witness on questions that may have already been put to such witness during the earlier cross-examination. That power of the learned trial court remains untrammeled, unfettered and unaffected both during the original cross-examination and/or during cross-examination upon recall of prosecution witness.
16. Thus, upon the prosecution witness being recalled, the defence shall not have a right to repeat any question as may have been already put to such witness, earlier. Conversely, any other aspect or question that may not have been put to such witness, during the earlier cross-examination, would remain permissible.
17. Also, the applicant may not be allowed unlimited or indefinite time to cross-examine the prosecution witness. Learned counsel for the applicant submits that the applicant be allowed one date opportunity each to re-examine or further examine PW-1, PW-2, and PW-3.
18. Consequently, the present criminal revision is allowed. The impugned order dated 07.08.2018 passed by the Addl. Sessions Judge/Fast Track Court, Mainpuri in Session Trial No. 652 of 2013 (State Vs. Updesh @ Shibbe & Others), arising out of Case Crime No. 243 of 2013, under Sections- 147, 148, 149, 307, 302, 504, 506, 120-B I.P.C. and 7 Criminal Law Amendment Act, Police Station- Kishani, District- Mainpuri is set aside.
19. It is further provided that the learned Court below may allow the applicant three dates being one date each to re-examine or further examine the prosecution witness i.e. PW-1, PW-2 and PW-3 on the date and time convenient to the learned Court below. The above exercise may be concluded as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order. The earlier orders passed by this Court to expedite the trial would continue to apply.
Order Date :- 7.9.2018 Abhilash