Allahabad High Court
Smt. Asha vs State Of U.P. on 18 November, 2020
Author: Deepak Verma
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 90 Case :- APPLICATION U/S 482 No. - 13126 of 2020 Applicant :- Smt. Asha Opposite Party :- State of U.P. Counsel for Applicant :- Raghuraj Kishore Counsel for Opposite Party :- G.A. Hon'ble Deepak Verma,J.
1. Learned AGA has filed counter affidavit today, which is kept on record.
2. Learned counsel for the applicant refused to file rejoinder affidavit.
3. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
4. This application under Section 482, Cr.P.C. has been filed to quash the order dated 24.02.2020 passed by Additional Sessions Judge, Court No.3, Saharanpur in S.T. No.605 of 2015, Crime No.169 of 2014 filed under Sections 147, 148, 149, 302, 120-B I.P.C., Police Station Kotwali, District Saharanpur.
5. It is contended by learned counsel for the applicant that F.I.R. was lodged by brother of the deceased, namely, Sanjai on 02.05.2014 at 02:30 pm registered as Case Crime No.169 of 2014, under Sections 147, 148, 149, 302, 120-B I.P.C. alleged therein that deceased Arvind @ Sheri, who was shot dead while he was driving his Activa Scooty. The Investigating Officer submitted that during trial, informant Sanjai Badhawa (eyewitness) had been examined as P.W. 1. Investigating Officer submitted his charge-sheet in which he has shown 34 witnesses. Rahul Kumar son of Virendra, R/o H/20 Numaish Camp Kotwali, Saharanpur is named as witness at Serial No.13 in charge sheet. He further submitted that witness-Rahul in his statement recorded under Section 61 Cr.P.C. has stated and supported the prosecution story but inadvertently the prosecution could not examine him during trial and, therefore, the applicant moved an application under Section 311 Cr.P.C. on 24.02.2020 to examine the Rahul in the case. He next submitted that in entire case except Rahul, all other witnesses are of conspirator are of formal in nature. The application under Section 311 Cr.P.C. is not to fill up the lacuna to strengthen the prosecution case or it will cause prejudice to the defence in any manner.
6. Learned counsel for the applicant has placed reliance over para 9 and 11 of the judgment of Hon'ble Apex Court passed in the case of Shailendra Kumar Vs. State of Bihar, AIR 2002 Supreme Court 270, para 9 and 11 are as follows:
9. In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded by the Court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Additional Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the Sessions Judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be left in lurch.
11. Bare reading of the aforesaid section reveals that it is of very wide amplitude and if there is any negligence, latches or mistakes by not examining material witnesses, the Courts function to render just decision by examining such witnesses at any stage is not, in any way, impaired. This Court in Rajendra Prasad Vs. Narcotic Cell [(1999) 6 SCC 110] observed, 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.
7. Per contra, learned AGA opposed the submission of learned counsel for the applicant and contended that charge-sheet No.92 of 2014 was submitted on 23.07.2014 in the present case in which there was 36 witnesses were recorded. The first informant Sanjai (brother of deceased) was at Serial No.1 and the name of witness-Rahul Kumar placed at Serial No.13 and Sanjai (P.W. 1) is eyewitness of the present case. During investigation he was recorded, as such, he is witness in the case but further submitted that it is well settled law that during trial the prosecution can examine as many as witnesses as it deem fit. In the present case 11 prosecution witnesses have been examined and proceedings under Section 313 Cr.P.C. had already been recorded and prosecution evidence has been closed and case had been fixed for argument. He further submitted that the present applicant is not the informant nor eye witness in the proceedings and application filed by him is not showing cogent reason to persuade the trial court to exercise its power under Section 311 Cr.P.C. Moresoever, the applicant-Smt. Asha is merely a pairokar/sister of deceased and she is not first informant of the present case. The first informant has already been examined by the trial court and he claimed himself to be an eye witness and is real brother of the deceased. He further submitted that prosecution had produced 11 witnesses in the present case to prove its case and case is fixed for argument. It is well settled law that under Section 311 Cr.P.C. cannot be invoked mere to fill up any lacuna. He further informed the Court that while rejecting the third bail of the accused-Sunny @ Cheeda this Court vide order dated 18.01.2018 directed the trial court to expedite the trial of the present case and conclude the same within a period of eight months from the said date. Again while rejecting the fourth bail application No.43588 of 2019 of accused Sunny @ Cheeda this Court vide order dated 13.12.2019 again directed to expedite the trial and conclude the same within a period of two months from the date of production of certified copy of the order and the impugned order passed by trial court is just and proper and based upon consideration of each and every aspect and order does not suffer from any irregularities or illegality.
8. The Section 311 Cr.P.C. are reproduced herein 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."
9. 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.
10. 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.
11. 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."
12. 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."
13. 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 Sectino 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."
14. 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."
15. 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.
16. From perusal of Hon'ble Apex Court judgment cited by applicant's counsel it is very much clear that fact of the case is entirely different from the present factual disputes.
17. The powers 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 on behalf of the deceased sister an application under Section 311 Cr.P.C. had been moved in which no ground at all were brought forward as to why the witness needs to be summoned for examination whereas P.W.1 who is eye witness has been examined and cross examined. Applicant here is sister of deceased, who is not the informant nor the witness in the case and prosecution has examined P.W.1, who is real brother and eye witness of the deceased. There are 36 witnesses whose statements have been recorded by Investigating Officer. All are not required to be examined. Prosecution has to consider which witness has to be produced and to be examined. Out of 36 witness, 11 prosecution witnesses have been examined and prosecution evidence have been closed. The Hon'ble High Court while rejecting bail application of accused, directed the court below to conclude the trial expeditiously within a period of two months from the date of production of certified copy of this order. In application, no reason has been given as to why earlier, application for examination of witness has not been moved and what is relevancy of his examination. The prosecution was given much opportunity to produce evidence and prosecution examined all the witness to whom he wanted to be examined but when Hon'ble High Court passed the order for expedite the trial then to linger on the case, moved present application under Section 311 Cr.P.C. It is well settled law that under Section 311 Cr.P.C. cannot be invoked mere to fill up lacuna of the case but to fair and just decision of the case.
18. 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 24.02.2020 passed by Additional Sessions Judge, Court No.3, Saharanpur in S.T. No.605 of 2015, Crime No.169 of 2014 filed under Sections 147, 148, 149, 302, 120-B I.P.C., Police Station Kotwali, District Saharanpur is refused.
19. The present 482 Application lacks merit and is accordingly, dismissed.
Order Date :- 18.11.2020 Nitin Verma (Deepak Verma, J.)