Subodh Dubey and others v. State of U. P. and another
2010-01-13
VINEET SARAN
body2010
DigiLaw.ai
Vineet Saran, J.;- Heard learned counsel for the petitioners as well as learned A.G.A. appearing for the State respondent and have perused the record. By means of this petition the accused-petitioners have challenged the orders dated 7.9.2009 and 21.10.2009 passed by the Sessions Court whereby the application of the accused-petitioners for recall and re-examination of a witness under section 311 Cr.P.C. has been rejected. 2. The accused-petitioners have been charged under section 302/201 read with section 34 I.P.C. regarding which trial has been going on since the year 2005. The witness in question who is sought to be recalled is P.W.5 Bajrang Bali Yadav who was examined on 8.1.2008, 25.2.2008 and 9.2.2009. Thereafter on 27.8.2009 an application was filed by the accused-petitioners for recalling the said witness merely on the ground that "due to over sight some questions regarding the statements of P.W.1, P.W.2 and P.W.3 recorded by the Investigating Officer Bajrang Bali Yadav could not be put to him". Along with the said application of the accused-petitioners, another application for producing a defence witness had also been made. By an order dated 7.9.2009 the Sessions Court allowed the application of the accused-petitioners for producing the defence witness, whereas it rejected the application under section 311 Cr.P.C. for recall and re-examination of the witness P.W.5 Bajrang Bali Yadav primarily on the ground that there was delay in moving the application and that the statement and cross examination of the said witness ran into 12 pages and that no good ground has been shown in the application for invoking the jurisdiction under section 311 Cr.P.C. 3. After the said order was passed, the accused-petitioners filed yet another application on 8.10.2009 under section 311 Cr.P.C. with the same prayer for recall and re-examination of the witness P.W.5. The said application has been rejected by the Sessions Court on 21.10.2009 primarily on the ground that the second application with the same prayer is not maintainable and that the Court does not have the power of reviewing its earlier order. 4. Learned counsel for the accused-petitioners has submitted that the power under section 311 Cr.P.C. can be invoked for securing the ends of justice and for the just decision of the case. In support of his submission reliance has been placed on a decision of the Apex Court in the case of Godrej Pacific Tech.
4. Learned counsel for the accused-petitioners has submitted that the power under section 311 Cr.P.C. can be invoked for securing the ends of justice and for the just decision of the case. In support of his submission reliance has been placed on a decision of the Apex Court in the case of Godrej Pacific Tech. Limited vs. Computer Joint India Limited (2008) 11 S.C.C. 108 . I have perused the same and in my view the ratio of the said judgment would not be applicable in the facts of the present case. 5. In the application which was initially filed by the accused-petitioners no good ground was given because of which it could be said that it was necessary to recall the witness P.W.5 for the just decision of the case. In any case, the statement of the said witness P.W.5 ran into 12 long pages and it was after more than six months of the closing of his evidence that the accused-petitioners filed an application for recalling the said witness. No doubt the Court has the power of its own also to recall and re-examine a witness under section 311 Cr.P.C. if in the opinion of the Court it is essential for the just decision of the case but in the present case neither such circumstances were found by the Court to exercise that power suo moto nor had any good ground been given in the application filed by the accused-petitioners for the trial court to have exercised such power. After the rejection of the first application under section 311 Cr.P.C. the accused-petitioners filed another detailed application which, in my opinion, was rightly rejected by the trial court as there was no power for reviewing the earlier order passed by the same court. Further, after one application under section 311 Cr.P.C. is rejected, the accused cannot be permitted to file another application on different grounds (even when the same existed when the first application was filed) and thus delay the disposal of the case. 6. As has already been stated above, the power under section 311 Cr.P.C. can be exercised by the Court on an application filed by the accused or of its own but only when if the recall and re-examination of any such witness appears to the Court to be essential for the just decision of the case. Such is not the position in the present case.
Such is not the position in the present case. Merely because some questions remained to be put to a particular witness and the said lacuna struck to the counsel after six months of the closing of the evidence of such witness, in my view, it would not be a sufficient ground for invoking the jurisdiction under section 311 Cr.P.C. In the facts of the present case, it clearly appears that the attempt and effort of the accused-petitioners is only to delay the conclusion of the trial as they have already filed two applications before the trial court and have also approached this Court by way of filing a Criminal Revision no. 5044 of 2009 which was withdrawn on 8.12.2009 with liberty to file a petition under section 482 Cr.P.C. From the above it is clear that the attempt of the accused-petitioners is only to prolong the proceedings before the trial court. In such facts, the act of the petitioners actually amounts to abuse of the process of Court. 7. In view of the above discussions, I do not find it to be a fit case for invoking the inherent powers of this Court under section 482 Cr.P.C. This petition is, thus, dismissed, however, with the observation that the trial court shall expedite the hearing of the case and conclude the same, preferably, within six months. The Registrar-General of this Court is directed to send a copy of this order to the trial court for necessary compliance.