Allahabad High Court
Dinesh Kumar Gupta vs State Of U.P. And Another on 23 November, 2020
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 51 Case :- APPLICATION U/S 482 No. - 16970 of 2020 Applicant :- Dinesh Kumar Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Imtiyaj Ali Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Imtiyaj Ali, learned counsel for the applicant and Mr. Pankaj Srivastava, learned A.G.A. for the State.
2. The present 482 Cr.P.C. application has been filed to quash the order dated 10th February, 2020 passed by the Additional Sessions Judge, F.T.C.-I, Bhadohi Gyanpur in Sessions Trial No. 176 of 2017 (State Vs. Ram Chandra Gupta) arising out of Case Crime No. 187 of 2017, under Sections-498-A, 304-B, 201 of Indian Penal Code (for short "I.P.C.") as also under Sections 3/4 of the Dowry Prohibition Act (for short "D.P.Act"), Police Station-Aurai, District-Bhadohi, whereby the application made by the applicant under Section 311 Cr.P.C. for further examination of Prosecution Witness Nos.1 and 2, namely, Arun Kumar Gupta and La Devi, has been rejected.
3. Learned counsel for the applicant submits that the marriage of sister of opposite party no.2, namely, Rinki Kumari Gupta was solemnized with the brother of applicant, namely, Ramesh Gupta. As per the prosecution case, in the said marriage, as per capacity, informant/opposite party no.2 and his mother has fulfilled the demand of dowry of the in-laws of Rinki. Thereafter for additional demand of dowry, the in-laws of the sister of informant, i.e. her husband, father-in-law, mother-in-law and brother-in-law started harassing, torturing and beating her. Rinki told the informant and her mother about the same. Since, the additional demand of dowry was not fulfilled by the informant and her mother, Rinki was killed and her dead body was cremated at Bhogaon Ghat without informing the informant and his mother. After lodging of the first information report, the Investigating Officer has conducted the statutory investigation under Chapter XII Cr.P.C. After conducting the same, the Investigating Officer has submitted the charge-sheet against the accused persons on 23rd May, 2017. On submission of the charge-sheet dated 23rd May, 2017, the concerned Magistrate took cognizance vide order dated 6th June, 2017 and the case was committed to the court of sessions for trial, which was numbered as Sessions Trial No. 176 of 2017 (State Vs. Ram Chandra Gupta) arising out of Case Crime No. 187 of 2017, under Sections-498-A, 304-B, 201 of I.P.C. as also under Sections 3/4 of the D.P. Act, Police Station-Aurai, District-Bhadohi. During the course of trial, the informant/opposite party no.2, namely, Arun Kumar Gupta has been examined and cross-examined on 16th January, 2018 as Prosecution Witness No.1 (for short "P.W.-1") and his mother, namely, Smt. La Devi has been examined and cross-examined as Prosecution Witness No.2 (for short" P.W.-2"). Learned counsel for the applicant submits that entire prosecution case is false and frivolous. The allegations made against the applicant and other accused persons are also false. They have been falsely implicated in the present case, as the death of Rinki Kumari Gupta i.e. the deceased was a natural death. Her cremation had been done in fair manner. The prosecution has also only built up the present case for harassing the accused persons and taking money from them. Learned counsel for the applicant further submits that it is no doubt true that the examination and cross-examination of P.W. Nos. 1 and 2 have been done but after perusing the same, the applicant came to know that due to inadvertent mistake of counsel, certain crucial questions could not put to the aforesaid prosecution witnesses and for rectifying the same, he made two separate applications under Section 311 Cr.P.C. before the trial court for further cross-examination of the aforesaid witnesses, which have been numbered as Paper Nos. 53-Ga and 53-Kha. In the said applications, it has been prayed that for putting some crucial questions regarding demand of dowry, harassment and death of the deceased, to P.W. Nos. 1 and 2, which had not been put up earlier, they should be summoned for further examinations, otherwise, the case of the applicant may be affected. By means of the order dated 10th February, 2020, the court below, without considering the case of the applicant and evidences available on record has rejected the applications filed by the applicant under Section 311 Cr.P.C. It is an admitted position that the applicant is in jail, therefore, there is also no occasion to delay the proceedings of the trial. There can be no dispute that the accused has a right to summon any evidence/witness, which may be for proper appreciation of the prosecution evidence and to substantiate his defence. The said aspect of the matter has completely been ignored by the trial court. He, therefore, submits that the order impugned, passed by the Additional Sessions Judge, is absolutely illegal, arbitrary, contrary to the evidence on record, hence the same is liable to be quashed. In support of his plea, learned counsel for the applicant has placed reliance upon the judgment of a Coordinate Bench of this Court in the case of Amarjeet @ Kaluwa Vs. State of U.P. & Another (Application U/s 482 No.-8463 of 2020, decided on 2nd November, 2020).
4. Per contra, Mr. Amit Singh Chauhan, learned A.G.A. for the State has opposed the submission made by the learned counsel for the applicant by contending that the order impugned passed by the court below is legal and valid. The court below has recorded pure finding of fact while rejecting the application filed by the applicant under Section 311 Cr.P.C. for re-examination of P.W. Nos. 1 and 2. The court below has not committed any error in passing the impugned order, therefore, do not call for any interference by this Court. Hence, he submits that the present application is liable to be rejected.
5. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application.
6. Before ascertaining correctness of aforesaid submissions having been made by the learned counsel for the parties, vis-a-vis, impugned order passed by the learned court below, this Court deems it proper to take note of the provisions of law contained under Section 311 CrPC:
"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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case."
7. Careful perusal of aforesaid provision clearly suggests that court enjoys vast power to summon any person as a witness or recall and re-examine a witness provided same is essentially required for just decision of the case. Moreover, such exercise of power can be at any stage of inquiry, trial or proceedings under the Code, meaning thereby, applicant can file an application at any time before conclusion of trial. Very object of Section 311 is to bring on record evidence not only from the point of view of accused and prosecution but also from the point of view of the orderly society.
8. Otherwise also, it is well established principle of criminal jurisprudence that discovery, vindication and establishment of truth are main purposes of underlying object of courts of justice. It is also well settled that wider the power, greater the responsibility upon court, which exercises such power and exercise of such power cannot be untrammeled and arbitrary, rather same must be guided by object of arriving at a just decision of case. Close scrutiny of aforesaid provision of law further suggests that Section 311 has two parts; first part reserves a right to the parties to move an appropriate application for re-examination of a witness at any stage; but definitely the second part is mandatory that casts a duty upon court to re-examine or recall or summon a witness at any stage if his/her evidence appears to be essential for just decision of case because, definitely the underlying object of aforesaid provision of law is to ensure that there is no failure of justice on account of mistake on the part of either of parties in bringing valuable piece of evidence or leaving an ambiguity in the statements of witnesses examined from either side.
9. The Apex Court in the case of Raja Ram Prasad Yadav vs. State of Bihar and another, reported in (2013)14 SCC 461, has held that power under Section 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case. It may be relevant to take note of the following paras of the judgment:-
"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 pre-fix 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 pre-fix 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. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. 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."
10. In this context, I also wish to make a reference to the judgment of the Apex Court in Mannan SK and others vs. State of West Bengal and another reported in AIR 2014 SC 2950, wherein the the Apex Court Court has held as under:-
"10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word 'shall'. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The court must form an opinion that for the just decision of the case recall or reexamination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine."
11. Aforesaid exposition of law clearly suggests that a fair trial is main object of criminal jurisprudence and it is duty of court to ensure such fairness is not hampered or threatened in any manner. It has been further held in the aforesaid judgments that fair trial entails interests of accused, victim and society and therefore, grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. The Apex Court has categorically held in the aforesaid judgment that adducing evidence in support of the defence is a valuable right and denial of such right would amount to denial of a fair trial.
12. Further, the Apex Court in Raja Ram Prasad Yadav (Supra), while culling out certain principles required to be borne in mind by the courts while considering applications under Section 311 has held that exercise of widest discretionary powers under Section 311 should ensure that judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts. Hon'ble Apex Court has further held that if evidence of any witness appears to be essential for the just decision of the case, it is the duty of the court to summon and examine or recall and re-examine any such person because very object of exercising power under Section 311 is to find out truth and render a just decision. Most importantly, in the judgment referred to herein above, the Apex Court has held that court should bear in mind that no party in 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.
13. Now on the coming to the merits of the order impugned dated 10th February, 2020, this Court finds that the court below, while rejecting the application filed by the applicant under Section 311 Cr.P.C., has specifically recorded a categorical finding of fact that the statement of P.W.-1, Arun Kumar Gupta has been recorded on 16th January, 2018, the statement of P.W.2, Smt. La Devi has been recorded on 30th January, 2018 whereas the statement of Ashok Kumar, who happens to be sister's husband (Jija) of the deceased has also been recorded and arguments on their behalf have been recorded. In the application filed by the application under Section 311 Cr.P.C. no such question, what has been left to know about the statement and cross-examination, has been mentioned in the application. Only the statement has been made that during the cross-examination, the points related to demand of dowry, harassment and death of the deceased have not been cross-examined but on which points, cross examination of P.W. Nos. 1 and 2 is required, has not been mentioned in the application under Section 311 Cr.P.C. In this case, the main accused, namely, Ramesh Chandra Gupta is in jail for the last three years. Accepting the present applications of the applicant in this way only means delaying the proceedings of the aforesaid case indefinitely. The court below, referring to the judgment of the Apex Court in the case of A.G. Vs. Shiv Kumar Yadav & Ors. reported in 2016 (1) Alld. A.I.R. Crl. J.30 (S.C.), wherein it has been held that changing of counsel only, there is no basis to summon P.W. Nos. 1 and 2 again for their further cross-examination, has held that the application is not liable to be allowed and the same is accordingly rejected.
14. From perusal of the records of the present application and applications filed by the application under Section 311 Cr.P.C. as well as from examining the order impugned, it is an admitted position that the P.W. Nos. 1 and 2 have already been examined and cross-examined. The plea of the applicant for summoning P.W. Nos. 1 and 2 for further cross-examination has only been taken to be rejected on the ground that there is no whisper in the application made by the applicant under Section 311 Cr.P.C. as to what remains to be cross-examined from P.W. Nos. 1 and 2, which have not been cross-examined by his counsel. The applicant has taken only a technical stand in the application under Section 311 Cr.P.C. that some points regarding demand of dowry, harassment and death of the deceased, have not been put up by his counsel during the cross-examination of P.W. Nos. 1 and 2. What are some points, have not been mentioned therein from which it is clear that for the just decision of the case, recall or reexamination or further examination of the P.W. Nos. 1 and 2 is necessary. From the application made by the applicant under Section 311 Cr.P.C., it is apparently clear that the same has been filed only for lingering on the trial of the case.
15. The fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. It is not possible to lay down precise situations when such power can be exercised. The Legislature in its wisdom has left the power undefined. Thus, the scope of power under Section 311 Cr.P.C. has to be considered from case to case.
16. The accused cannot have the witness recalled for re-examination as a matter of right and extraordinary provision cannot be used as an afterthought to fill the gaps.
17. Considering the materials brought on record and keeping the principles laid down by the Hon'ble Supreme Court for exercise of power under section 311 Cr.P.C., this Court is of the opinion that observations and findings recorded by the trial Court in rejecting the application under Section 311 Cr.P.C. of the accused-applicant under the facts and circumstances of the case are fully sustainable. The trial Court has committed no illegality or infirmity in the order impugned by rejecting the application of the applicant. There appears no abuse of process of the Court also. There is no evidence on record to satisfy this Court that trial would be seriously prejudiced if the said witnesses is not recalled for re-examination or further examination. The judgment of a Coordinate Bench of this Court in the case of Amarjeet @ Kaluwa (Supra) is clearly distinguishable in the facts of the present case.
18. In view of the above, the application of the applicant having no merit deserves to be rejected. In the result, the application is rejected.
19. The office is directed to communicate this order to the court concerned to proceed with the case in accordance with law.
(Manju Rani Chauhan, J.) Order Date :- 23.11.2020 Sushil/-