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2016 DIGILAW 814 (ALL)

PANKAJ KUMAR v. STATE OF U. P.

2016-03-04

RANJANA PANDYA

body2016
JUDGMENT : Hon'ble Mrs. Ranjana Pandya, J. 1. Heard learned counsel for the applicant and learned Additional Government Advocate for the State-respondent. 2. By means of this application u/s 482 Cr.P.C. the applicant has prayed for quashing of the order dated 26.02.2016 passed by the Additional Sessions Judge, Court No. 1, Moradabad and also for a direction to the trial court to allow the application No. 27B of 2011, under section 311 Cr.P.C. for recalling the Investigating Officer PW-5 Pankaj Verma in Sessions Trial No. 235 of 2014 arising out of Case Crime No. 175 of 2013, under section 307 IPC, PS Hazrat Nagar Gari, district Moradabad. 3. It has been submitted on behalf of the applicant that the applicant moved an application under section 311 Cr.P.C. for summoning PW-6 Dr Sunil Kumar, who was not mentioned in the charge sheet. This witness PW-6 Dr Sunil Kumar has stated that the injured Ankush Kumar was admitted in the hospital by some police personnel. Hence, the Investigating Officer PW-5 has to be further cross-examined on certain points, which were left out. Hence the witness PW-5 Pankaj Verma to be summoned under section 311 Cr.P.C. This application was rejected by the learned trial court on 26.02.2016. If the orders is allowed to stand, it will occasion the failure of justice and the applicant will suffer irreparable loss. 4. It has further been submitted by the learned counsel for the applicant that the Court has ample powers to examine this aspect of the matter on an application moved under section 482 Cr.P.C. Hence the prayer is liable to be allowed. 5. No doubt, this aspect of the matter can be examined by this Court while exercising power under section 482 Cr.P.C. 6. Learned counsel for the applicant has placed reliance upon the decisions of Hon'ble the Supreme Court in Devendra and others vs State of U.P. and another reported in (2009) 7 SCC 495 and in Natasha Singh vs Central Bureau of Investigation, reported in (2013) 5 SCC 741 , but the court has definitely to see whether the summoning of a particular witness is necessary to do justice between the parties or not. 7. Section 311 Cr.P.C. reads as follows: "311. Power to summon material witness, or examine person present. 7. Section 311 Cr.P.C. reads as follows: "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." 8. The court has to look into the matter whether the evidence proposed to be adduced is relevant or not. The applicant has no grievance regarding examination of PW-6 Dr Sunil Kumar. His grievance is that PW-5 is the Investigating Officer to whom certain question related to PW-6 had to be put, but were not put. Why the questions were not put has not come forward from the side of the applicant. 9. In (2008) 11 Supreme Court Cases 108, Godrej Pacific Tech. Limited vs Computer Joint India Limited, the Hon'ble Apex Court has laid down "8. 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 of 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 the Magistrate 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 any 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 the wider the power the greater is the necessity for application of judicial mind. 9. 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 the wider the power the greater is the necessity for application of judicial mind. 9. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short "the Evidence Act") are based on this rule. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. 10. The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. The right to cross-examine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross- examination to the complainant." 11. Perusal of the record shows that the statement of PW-4 Dr Kunwar Anees Khan was recorded and after his statement, the statement of PW-6 was recorded. As is evident from the order, the cross examination of the Investigating Officer was in-continuation, while the evidence of PW-4 Dr. Kunwar Anees Khan has concluded on 08.02.2016. Besides, after remaining mum for quite some time, the applicant moved the present application only to delay the process of the Court, inasmuch as there were directions of the High Court for expeditious disposal of the sessions trial relating to the year 2014. The early disposal of the case does not mean that the court will decide the matter in a hurried way without following law, but the litigant should also not misuse the process of law. Hence neither it is expedient nor necessary that the witness, who has been cross examined at length on all issues to be recalled for further cross examination. The application was rightly rejected by the court below. 12. In view of what has been indicated herein above, the present application u/s 482 Cr.P.C. has no force and is accordingly rejected.