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Allahabad High Court · body

2019 DIGILAW 2055 (ALL)

Sandeep Kumar Yadav v. State of U. P.

2019-09-04

RAJEEV SINGH

body2019
ORDER : RAJEEV SINGH, J. 1. Heard Mr. Farooq Ayoob, learned counsel for the applicant, Mr. Vinod Kr. Pandey, learned counsel for the opposite party No. 2, Mr. Aniruddh Singh, learned A.G.A. for the State. 2. This application under Section 482 Cr.P.C. has been filed by the applicant for quashing impugned order dated 18.05.2019 passed by Additional District & Sessions Judge, Barabanki (FTC) Court No. 37, in Sessions Trial No. 160 of 2016, under Section 311 Cr.P.C. arising out of Crime No. 385 of 2015 under Sections 302/201 I.P.C. Police Station Mohammadpur Khala, District Barabanki. 3. Learned counsel for the applicant has submitted that the opposite party No. 2. lodged the First Information Report as Case Crime No. 385 of 2015, under Sections 302 and 201 I.P.C. Police Station Mohamand Pur Khala, District Barabanki against one unknown person. In the FIR, it is alleged that the younger sister of informant aged about 18 years was studying in Jagriti Inter College, Suratganj. On 14.12.2015 she went for easing and when she did not come back, then the search was made and at about 11:30 a.m. it was informed by someone that a body of a girl is lying in the field of Arhar, then informant and his younger brother along with other villagers rushed to the said place, where the body of his sister was lying in the said field and blood was coming from her mouth. On their apprehension that his sister was killed by throttling and the body was thrown in the field. After investigation, the chargesheet was filed against the applicant. After taking cognizance on the chargesheet, the case was committed to the trial court which was registered as Sessions Trial No. 160 of 2016 and the charges were framed against the applicant and the trial was proceeded. 4. Learned counsel for the applicant has further submitted that the statements of 14 prosecution witnesses were concluded and trial is at the stage of statement under Section 313 Cr.P.C. The application under Section 311 Cr.P.C. was moved by the informant to re-call the PW-1. The objection was filed by the applicant, but without considering the objection, the application No. B-59, under Section 311 Cr.P.C. was allowed by Additional District and Sessions Judge, FTC, Court No. 37 Barabanki vide order dated 18.05.2019 and the PW-1 was recalled for re-examination. The objection was filed by the applicant, but without considering the objection, the application No. B-59, under Section 311 Cr.P.C. was allowed by Additional District and Sessions Judge, FTC, Court No. 37 Barabanki vide order dated 18.05.2019 and the PW-1 was recalled for re-examination. The PW-1 was examined in the year 2016, but only for the purpose to fill up the lacuna a request was made by the opposite party No. 2 to recall him again, after conclusion of 14 prosecution witnesses. Learned counsel for the applicant has further submitted that opposite party No. 2/PW-1 is not an eye witness and the mother of opposite party No. 2 is only the last seen witness as per the prosecution case. Therefore, the court below has committed error in recalling the PW-1. 5. Learned counsel for the applicant has also relied on the judgment of the Hon'ble Supreme Court in the case of Mannan Shaikh and Others Vs. State of West Bengal and Another reported in (2014) 13 SCC 59 and submitted that at the time of allowing the application under Section 311 Cr.P.C. it is obligation of the court below to examine that whether recall of witness is for filling of lacuna or it is for just decision of the case. In the present case the court below considered the complaint given by the mother of the informant in the year 2016, during the pendency of the trial. Learned counsel for the applicant has further submitted that if the informant was aggrieved from the investigation, then he should have approached before the Hon'ble High Court, as it is admitted that the opposite party No. 2 is working in the Railway Department, but he did not chooses to do so. The trial court relied the case diary related to the statement of the informant under Section 161 Cr.P.C. which was already considered by his predecessor at the appropriate stage. At this juncture no necessity is shown to recall the PW-1. The trial court relied the case diary related to the statement of the informant under Section 161 Cr.P.C. which was already considered by his predecessor at the appropriate stage. At this juncture no necessity is shown to recall the PW-1. Learned counsel for the applicant has further submitted that in the conclusion part of the order, the learned court below had discussed the FIR and informant's statement deposed before the trial court on 01.08.2016 and observed that it is evident from the statement that after killing his sister, unknown person hide the body of the deceased in the field with the bad intention and it is also observed that there is a lacuna in the examination-in- chief of PW-1 and in his statement recorded under Section 161 Cr.P.C. Therefore, the PW-1 is recalled in the most mechanical manner. 6. Learned counsel for the opposite party No. 2 as well as learned A.G.A. oppose the present application and submitted that there is no illegality in the order passed by the trial court. Learned A.G.A. has further submitted that in pursuance of order dated 18.05.2019, the PW-1 was examined again on 29.06.2019 and the matter was being listed only for cross-examination. 7. Learned counsel for the opposite party No. 2 has relied the judgment of Hon'ble Supreme Court in the Case of Natasha Singh Vs. Central Bureau of Investigation (State) reported in (2013) 5 SCC 741 . The relevant portion of the judgment reads as under:- "8. Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case." 8. Learned counsel for the opposite party No. 2 has also relied on the judgment of Hon'ble Supreme Court in the case of Rajaram Prasad Yadav Vs. State of Bihar and Another reported in (2013) 14 SCC 461 and in the case of Manju Devi Vs. State of Rajasthan & Anr, reported in SLP (Crl.) No. 8315 of 2018. 9. After considering the contentions of learned counsel for the parties and material available on record, the provisions of Section 311 Cr.P.C. empowers, the trial court to summon any person as a witness or examine any person in attendance, though not summoned as witnesses or recall and re-examine any person already examined, if his evidence appears to it to be essential to just decision of the case. The provisions of Section 311 Cr.P.C. reads as under:- "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." 10. It is evident from the pleadings and the argument of the counsel for the parties, the FIR was lodged by the opposite party No. 2, who is not an eye witness, against unknown persons and during the investigation, the applicant came into the light on the basis of circumstantial evidence. The opposite party No. 2 was examined before the court below as PW-1 on 01.08.2016 and he was re-examined on 29.06.2019 in the most hasty manner in compliance of impugned order. 11. The opposite party No. 2 was examined before the court below as PW-1 on 01.08.2016 and he was re-examined on 29.06.2019 in the most hasty manner in compliance of impugned order. 11. It is evident from the statement of PW-1 that he deposed in the examination-in-chief about written complaint, FIR, Inquest Report and he has specifically mentioned that he was going to search his sister and no one met to him. 12. The Hon'ble Supreme Court has laid down that the provision of Section 311 Cr.P.C. it is undoubtedly has given a very vide discretion to the court to recall and re-examine any person, who has already been examined, but such a discretion is to be exercised judiciously and not arbitrarily, the power to court in this context is very vide and in exercise of the same it may summons any person as a witness at any stage of the trial or other proceedings. The Court is competent to exercise such power even suo moto, if no such application filed by either of the parties, however, the court must satisfied itself that to recall a witness for further examination in order to arrive just decision of the case. 13 In the present case, after going through the impugned order, it is evident that there is no such reason and satisfaction was recorded by the court below to recall the PW-1 and the application is allowed by merely saying that it seems appropriate to recall the PW-1. 14. Considering the above mentioned facts and circumstances of the case, the present application is hereby allowed and the order dated 18.05.2019 is hereby quashed and the trial court is directed to proceed in accordance with law.