Allahabad High Court
Istekar vs State Of U.P.And Another on 19 July, 2021
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 49 Case :- CRIMINAL REVISION No. - 1022 of 2021 Revisionist :- Istekar Opposite Party :- State Of U.P.And Another Counsel for Revisionist :- Anand Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Vivek Agarwal,J.
1. Heard Sri Anand Kumar Singh, learned counsel for the revisionist and Sri Nagendra Srivastava, learned AGA for the State.
2. This petition has been filed by the petitioner being aggrieved of the order dated 19.03.2021 passed by learned Fast Track Court-Ist, Moradabad in Sessions Trial No. 86 of 2017, in Case Crime No. 308 of 2016, under Section 498-A, 304-B IPC and 3/4 of Dowry Prohibition Act, Police Station Chhajlet, District-Moradabad, whereby an application filed to summon certain witnesses as defence witness, has been partly allowed and partly rejected.
3. Petitioner had filed an application dated 19.03.2021, seeking permission to produce three witnesses as defence witnesses and had prayed for their summoning.
4. Learned court below permitted summoning of two of the persons namely, Nawab and Ible Hassan, but dismissed the prayer for summoning of Mohd. Sharif, on the ground that he was been already examined as prosecution witness PW1. Court had conducted cross examination on this witness, as nobody had appeared for the defence. The court below rejected the application, on the ground that once a witness had already been examined as PW1, then he cannot be permitted to be examined, as defence witness.
5. Learned counsel for petitioner places reliance on a judgment of Supreme Court in case of Mohanlal Shamji Soni vs. Union of India and Another; 1991 CRI. L. J. 1521 (Supreme Court), which is an authority on the ground that under Section 311 Cr.P.C., which is almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words that 'to be' before the word 'essential' occurring in the old section is manifestly in two parts and the second part of the Section does not allow any description, but it binds and compels the court to take any of the aforementioned two steps if the fresh evidence is to be obtained is essential to the just decision of the case.
6. In this backdrop, it is submitted that impugned order be quashed.
7. Learned AGA submits that there is no ground mentioned in an application, seeking production of defence witness and as to why production of PW1 is necessary. It is further submitted that provision of Section 311 Cr.P.C., will not be applicable to the facts of the present case, inasmuch as, admittedly, application, though, filed by the petitioner, does not make a mention of the legal provision under which it has been filed, but apparently it is under the provisions of Section 233(3) Cr.P.C. and the scope of the provisions contained in Section 311 and 233(3) Cr.P.C. are different and therefore, judgment rendered in the case of Mohanlal Shamji Soni (supra), has no application to the facts and circumstances of the present case.
8. After hearing learned counsel for the parties and going through the record, it is apparent that the present controversy is fully covered by the decision of Madhya Pradesh High Court in case of Pappu @ Chandra Pravesh Tiwari vs. State of Madhya Pradesh; 2013 CRI.L.J. 3707. It will be profitable to refer to the provisions of Section 311 Cr.P.C., which reads as under:-
"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 4 Criminal Revision No.2109/2011 decision of the case".
9. Whereas provisions of Section 233(3) Cr.P.C., reads as under:-
"If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."
10. A comparative reading of the two sections reveals that provisions under Section 311 Cr.P.C. bestows wider description upon the court to recall any prosecution witness, if it is required to meet the ends of justice. Court can even call any witness, though not cited by any of the party for the just decision of the case, but at the same time, it is also true that Section 233(3) Cr.P.C. deals with calling of the witness and defence and does not deal with the provisions for recalling of the prosecution witness.
11. In fact, dealing with these issue, Madhya Pradesh High Court in Para-7 and Para-8 has answered the question in the following terms, which reads as under:-
"...............7. The Hon'ble Apex Court in the case of "State of M.P. Vs. Badri Yadav and another" [AIR 2006 SC 1769] has held that if a prosecution witness, who had been examined, cross- examined and discharged to be juxtaposed as defence witness, then he remains as a prosecution witness. In the light of the judgment passed by the Hon'ble Apex Court, the fact as to whether the prosecution witness can be called as a defence witness needs to be examined. For example, if a doctor is examined by the prosecution, who has proved the various injury reports of the victims and was released after his cross-examination, it was found that he was required to prove the injuries caused to any of the accused persons and the injury reports are filed after his cross- examination by the defence then, such a doctor can be a defence witness for the injury reports of the accused persons. Therefore, if the prosecution witness who has already been fully examined is required to be recalled as a defence witness then, it is for the accused to show as to how he may be counted as a defence witness. In the order passed by the Single Bench of this Court in the case of Harbhajan (Supra), it was observed that, though the prosecution's witness was recalled as a defence witness but he shall remain a prosecution witness and a further cross-examination if necessary can be done upon that witness. In that order, the 6 Criminal Revision No.2109/2011 Single Bench of this Court has found an error that one witness, who was examined as a prosecution witness also examined a defence witness and his evidence was recorded for two times in a different manner. In the light of the order passed by the Single Bench of this Court in the case of Harbhajan (Supra), it would be apparent that if the prosecution witness is called as a defence witness then, his statement shall continue, which was recorded in the deposition sheet, where his prosecution evidence was completed. His statement shall be started as a defence witness from the end of his previous statement.
8. Under such circumstances, it was for the accused to establish that both the witnesses who were examined as a prosecution witnesses were the defence witness and therefore, examination was necessary. If the application filed by the applicant before the trial Court under Section 233(3) of Cr.P.C. is perused then, it would be apparent that no reason has been mentioned by the applicant as to why he wanted to examine those two witnesses as a defence witness. What was the kind of defence that he wanted to prove by those witnesses. The applicant did not mention any reason in that application and therefore, it is apparent that when the application under Section 311of Cr.P.C. was dismissed and that order attained finality, thereafter to defeat that order, an application underSection 233(3)of Cr.P.C. was moved and therefore, it would be apparent that the applicant's application was 7 Criminal Revision No.2109/2011 not submitted on bonafide grounds. No defence was to be proved by the applicant from those witnesses but he wanted to recross- examine them with the help of the application and therefore, the application moved by the applicant underSection 233(3)of Cr.P.C. for the purpose of vexation and therefore, it could not be allowed underSection 233(3)of Cr.P.C. The trial Court has rightly rejected the application filed by the applicant underSection 233(3)of Cr.P.C. because it was moved only to defeat the previous order of the trial Court underSection 311of Cr.P.C., which attained the finality."
12. Thus, in view of the discussion above, I am also of the opinion that there is no illegality or perversity in the impugned order, passed by the learned Fast Track Court-Ist, Moradabad in Sessions Trial No. 86 of 2017, petitioner has not given any reason as to why he wanted to examine Mohd. Sharif and what is the kind of defence he wanted to prove. There is no indication as to whether application was moved under Section 311 Cr.P.C. or not, therefore, there is no basis on which revision filed may be accepted. Consequently, revision filed by the petitioner, is dismissed.
13. Copy of the order be sent to the trial court for information to proceed with the case.
Order Date :- 19.7.2021 Vikram/-