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2016 DIGILAW 1911 (ALL)

Devendra Pal Singh v. State of U. P.

2016-05-17

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. This application under Section 482 CrPC has been filed with the prayer to quash the order dated 29.3.2016 passed by the Additional District Judge / Special Judge (SC/ST) Act, Gautam Budh Nagar in Session Trial No. 1934 of 1996 relating to case crime no. 200 of 1996 under Sections 302 and 307 IPC, P.S. Transport Nagar, District Meerut whereby the application moved under Section 311 CrPC for re-calling the Investigating Officer-PW-8 has been rejected. Further prayer has been made to stay the effect and operation of the said order. 2. Heard Shri Swetashwa Agarwal, learned counsel for the applicant, Shri Gaurav Kakkar, learned counsel for the opposite party no.2 and the learned AGA. 3. It was submitted by the learned counsel for the applicant that no prejudice would be caused to the prosecution if the witness sought to be re-examined is summoned for the said purpose. It was further submitted that during course of the argument, it was felt necessary to clarify certain facts for which re- examination of PW-8 is essential. Referring to the provisions of Section 138 of the Evidence Act, it was submitted that to clarify certain facts any witness already examined may be re-examined. It was further submitted that the application moved under Section 311 CrPC for the purpose mentioned therein, cannot be rejected only on the ground of delay. Hence, the order passed by the court below is illegal. 4. On the other hand, learned counsel for the opposite party no.2 and the learned AGA submitted that the application under Section 311 CrPC was moved at the stage of argument to fill-up the lacuna in the prosecution evidence. It was also submitted that sufficient opportunity has been availed by the prosecution for the said purpose. Separate Trial for recovery of the weapon in question is pending and the document sought to be proved are not the part of this trial. While rejecting the application, the observations recorded by the court concerned are in accordance with law. There is no infirmity or illegality in the impugned order warranting interference by this Court. In support of the submissions, learned counsel for the opposite party no.2 placed reliance on the decision of the Apex Court in State (NCT of Delhi) vs. Shiv Kumar Yadav and another, (2016) 2 SCC 402 . 5. There is no infirmity or illegality in the impugned order warranting interference by this Court. In support of the submissions, learned counsel for the opposite party no.2 placed reliance on the decision of the Apex Court in State (NCT of Delhi) vs. Shiv Kumar Yadav and another, (2016) 2 SCC 402 . 5. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case law cited in the matter. 6. A fair trial is the main object of criminal procedure, which may entail the interests of the accused, the victim and of the society and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned and the same must be ensured as this is a constitutional as well as human right. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. It is also settled that mere mention that recall is necessary for ensuring fair trial is not enough unless there are tangible reasons to show how the fair trial would suffer without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While dealing with such type of application, the court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed. 7. In the present matter, it is evident that separate trial for recovery of the weapon in question is pending. PW-8, to whom the prosecution wants to re-cross examine, has already been examined. Cross-examination was also done by the accused. If the contents of the application under Section 311 CrPC are taken into consideration, it is also evident that the applicants had moved the said application with a view to clarify certain facts raised during the course of argument. It means the prosecution wants to fill-up the lacuna occurred in the prosecution evidence. If this fact is not taken into consideration, then also the trial for recovery of the weapon in question is going on separately. Papers relating to the recovery are also part of that trial. It means the prosecution wants to fill-up the lacuna occurred in the prosecution evidence. If this fact is not taken into consideration, then also the trial for recovery of the weapon in question is going on separately. Papers relating to the recovery are also part of that trial. The trial court has rejected the aforesaid application after considering the entire facts and evidence and has given cogent and convincing reasons and it will not tantamount to denial of fair trial. Hence, there is no infirmity or illegality in the said order rejecting the application under Section 311 CrPC filed by the applicant. The application being devoid of merits is liable to be dismissed and the same is accordingly dismissed.