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2016 DIGILAW 2707 (ALL)

Babu Ram v. State of U. P.

2016-08-04

RANJANA PANDYA

body2016
JUDGMENT Ranjana Pandya, J. Heard learned counsel for the revisionist and learned A.G.A. 2. This revision has been preferred for quashing the order dated 13.07.2016, passed by Additional District and Sessions Judge / FTC, Lakhimpur Kheri, rejecting the application filed by the revisionist under Section 311 Cr.P.C. for recalling PW-1 Kalpana and PW-2 Ramesh Chandra and during the pendency of the instant revision the further proceeding of S.T. No. 40 of 2014 may be stayed. 3. Counsel for the revisionist has placed reliance upon 2007 Cri.L.J. 1626, M/s Sree Venkatadeswara Enterprises vs. G Rajasekharan Nair, in which it has been laid down that provisions of Section 311 Cr.P.C. can be invoked before pronouncement of the judgment. 4. The provisions of Section 311 Cr.P.C. can be taken any time before the pronouncement of the judgment, hence in this way, Section 311 Cr.P.C. does not restrict the powers of the Court. 5. Counsel for the revisionist has again placed reliance upon (2013) 5 SCC 741 , Natasha Singh vs. Central Bureau of Investigation (State), in which it has been laid down as under: - "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. 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. The very use of words such as 'any Court', 'at any stage", or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case." 6. Further in AIR 1999 Supreme Court 2292, Rajendra Prasad vs. Narcotic Cell through its Officer-in-charge, Delhi, It has been laid down that Section 311 Cr.P.C. cannot be used to filling up lacuna of anybody's case. 7. Learned counsel for the revisionist has lastly been placed reliance upon 2006 Cri.L.J. 1574, Rajesh K. Kondappa & Anr. vs. State of Karnataka, in which it has been held that the corollary of latches or mistake during conduction of the case cannot be permitted to be filled up and the inherent weaknesses cannot be permitted to be made good by any party. 8. In the present case, when the case was listed for arguments, an application purporting to be under Section 311 Cr.P.C. was moved on 06.07.2016 stating that some important questions could not be put to the witnesses PW-1 Kalpana and PW-2 Ramesh Chandra. 9. No doubt the application under Section 311 Cr.P.C. can be moved at any stage, even at the state of arguments but the revisionist failed to show as to what questions were relevant which could not be asked from the witnesses and why. Thus, the application is short of requirements of Section 311 Cr.P.C.. 10. Perusal of the record shows the case is fixed for defence evidence. The prosecution evidence has concluded and the case is fixed for arguments. Thus, the application is short of requirements of Section 311 Cr.P.C.. 10. Perusal of the record shows the case is fixed for defence evidence. The prosecution evidence has concluded and the case is fixed for arguments. It appears that during the prosecution evidence, the revisionist was sleeping on his rights. Both the witnesses were extensively cross-examined. What questions are remained to be asked from the witnesses are not clear. 11. There is no illegality, irregularity or impropriety in the order under revision. The revision has no force and is liable to be dismissed. Accordingly the revision is dismissed.