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2013 DIGILAW 29 (ALL)

DESRAJ v. STATE OF U. P.

2013-01-04

VIRENDRA VIKRAM SINGH

body2013
JUDGMENT Hon’ble Virendra Vikram Singh, J.—The revisionist has approached this Court with the prayer for quashing the impugned order dated 2.4.2004 passed by the Additional Sessions Judge (F.T.C-II) Kairana, District Muzaffarnagar. By the impugned order, the learned Court below allowed the application of the accused-respondents under Section 311 of the Code of Criminal Procedure (to be referred as Cr.P.C. hereinafter), and has permitted the cross-examination of the revisionist/witness P.W. 1. 2. The brief facts giving rise to the present revision are that for the act of the murder of his father Jhodha and causing severe injuries to the inmates of the house, the revisionist lodged a report naming three persons and others unnamed. On this report, the investigation followed and charge-sheet was submitted against three nominated accused and two others. 3. On the basis of the charge-sheet and other prosecution documents, trial followed in which on 13.2.2004, the revisionist being the complainant was examined as P.W. 1. The cross-examination could not be concluded on this date and it continued on the next date, i.e. 20.2.2004 as well. On this date, the revisionist was discharged after the cross-examination was closed. After this date, on 2.4.2004, on behalf of the accused persons, an application was moved with the prayer that the revisionist, P.W. 1 be recalled for further cross-examination. It is proper to mention it here that no ground whatsoever was mentioned in the application as to why the witness is being sought to be recalled except that it was necessary. This application by the impugned order was allowed by passing the order which is impugned in the present revision. 4. Heard learned counsel for the revisionist and learned Additional Government Advocate. It has been argued on behalf of the revisionist that the application of the accused-persons to recall the witnesses was mala fide with the ulterior object of delaying the trial and to harass the revisionist as no ground for recall was mentioned in the application, hence the application was liable to be dismissed. The learned Court below has committed illegality in passing the impugned order which is liable to be set aside. 5. On behalf of the private-respondents, the accused facing trial in the case, it has been argued that in the FIR the revisionist has claimed himself to be an eye-witness but in his statement before the Court, he stated to be away from the house. 5. On behalf of the private-respondents, the accused facing trial in the case, it has been argued that in the FIR the revisionist has claimed himself to be an eye-witness but in his statement before the Court, he stated to be away from the house. Thus the recall of the witnesses was called for and this ground was mentioned during the course of argument before the Court below. The Court definitely has the power to recall a witness under the provisions of Section 311 Cr.P.C and as such the Court below has not committed any illegality or irregularity in passing the impugned order which deserves to be upheld. Section 311 Cr.P.C, reads as follows; “Any Court may,at any stage of inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine, 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 person if his evidence appears to it to be essential to the just decision of the case.” A bare perusal of the 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, 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. It is true that the powers 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. 6. In the case of Hanuman Ram v. 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. 6. In the case of Hanuman Ram v. 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.” 7. Again in the case of Vijay Kumar v. State of U.P and others, (2011) 11 SCR 893, the Hon’ble the Apex Court has held as follows: “It is hardly needs to be emphasised 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. 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. 8. In the case of Nisar Khan alias Guddu v. State of Uttaranchal, 2006 SCC 386 , the Apex Court has condemned the practice of summoning the witnesses for further cross-examination after they were discharged. The Apex Court has held as follows: “We are of the view that no reasonable person properly instructed in law would allow an application filed by the accused to recall the eye-witnesses after a lapse of more than one year that too after the witnesses were examined, cross-examined and discharged.” The discretion made above abundantly goes to show that even though the Courts have very wide power to summon or recall a witnesses, but the power should be judiciously exercised while these principles are applied to the present set of facts. 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. 9. While considering the present case the situation is that on behalf of the accused while moving an application under Section 311 Cr.P.C no ground at all were brought forward as to why the witness needs to be recalled for cross-examination and such type of application without any ground was deserved to be dismissed. 10. Further more even if, the ground mention in the order be taken as a ground that the witnesses Desraj the present revisionist in his statement before the Court has described that at the time of the occurrence he was not inside the house, but was on his field near expeler was in favour of the accused in-as-much as the witness declined himself to be a witnesses. The entire cross-examination from the witness on two dates was made on this issue only. From those it cannot be said that on behalf of the accused the effect that the witnesses declined himself to be eye-witness was not to their notice. The simple fact that after the cross-examination is over, some other questions creped into the mind of the learned counsel for the accused to be asked from the witness cannot be a ground to recall a witness unless in the discretion of the Court, the recall of witness otherwise was called for or it was necessary for the just decision of the case. Having considered the situation, the Court definitely comes to the conclusion that the impugned order dated 2.4.2004 passed by the learned Court below definitely transgress the discretion vested in the Court and as such the order was illegal and is liable to be set aside. The revision deserves to be allowed. The revision is hereby allowed. The impugned order dated 2.4.2004 is set aside. Interim order, if any is hereby vacated. ——————