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2019 DIGILAW 212 (UTT)

Ranjeet Singh v. State of Uttarakhand

2019-03-15

MANOJ K.TIWARI

body2019
JUDGMENT : MANOJ K. TIWARI, J. 1. Applicant is facing trial with other co-accused persons for offences punishable under Sections 147, 148, 149, 302, 307, 504 & 506 of I.P.C. pending in the court of learned IIIrd Additional Sessions Judge, Rudrapur, District Udham Singh Nagar. After examination of all prosecution witnesses, applicant moved five applications, out of which two applications were allowed, namely, Application No. 354Kha and Application No. 360Kha whereby applicant had sought recall of constable Shyam Sunder (P.W.-4) for cross examination and had also sought summoning of record of Amrit Hospital, Rudrapur where applicant and another co-accused Surjeet Singh were allegedly treated for the injuries sustained by them. 2. By means of this Criminal Miscellaneous Application under Section 482 Cr.P.C., applicant has challenged rejection of his three applications i.e. Paper Nos. 346 Kha, 348Kha and 349Kha by learned trial Court i.e. IIIrd Additional Sessions Judge, Udham Singh Nagar vide order dated 01.03.2019. 3. By Paper No. 349Kha, applicant made a prayer that the Surevey Amin, who submitted survey report after measuring Khet No. 144/1, Khata No. 99 on applicant’s request be summoned as defence witness along with all relevant revenue record. Paper No. 348Kha is an application under Section 311 read with 231 (2) Cr.P.C. whereby applicant made a prayer to recall two prosecution witnesses for additional cross examination, namely, Ballistic Expert Mr. B.P. Singh, Senior Scientific Officer, CFNL, Chandigarh (P.W.-10) and Dr. Harsh Singh Airy (P.W.-12), presently posted as Joint Director, District Hospital Champawat, who examined the injuries sustained by the applicant and another co-accused Surjit Singh. By paper no. 346 Kha, applicant had sought permission to file three documents on record, namely, (a) photocopy of the application made by Ranjit Singh (applicant herein) to Assistant Collector, Sitarganj for measurement of land; (b) photocopy of the report submitted by Survey Amin to the Assistant Collector, pursuant to said application and (c) photocopy of the revenue map of the land. 4. These three applications were rejected by learned IIIrd Additional Sessions Judge, Udham Singh Nagar vide order dated 01.03.2019. Application Paper Nos. 4. These three applications were rejected by learned IIIrd Additional Sessions Judge, Udham Singh Nagar vide order dated 01.03.2019. Application Paper Nos. 346 Kha & 349 Kha were rejected by learned trial Court by holding that it is a criminal trial in which civil rights are not adjudicated, therefore, the revenue records, report of Survey Amin and the application by Ranjit Singh (applicant herein) to Assistant Collector for measurement of the land are wholly irrelevant in a criminal trial. It was further observed by learned trial Court that for the same reason, the application for summoning the Survey Amin, who measured the land, cannot be allowed. 5. The application made under Section 311 read with Section 331 (2) Cr.P.C. was rejected by holding that Mr. B.P. Singh, Ballistic Expert (P.W.-10) and Dr. Harsh Singh Airy (P.W.-12) have already been cross examined; thereafter, application made by the defence for summoning these two witnesses as defence witness was rejected vide order dated 20.02.2019 and further that this Court vide order dated 18.09.2018 has issued direction to conclude the trial within six months, copy of the said order was submitted before trial Court on 25.09.2018, therefore the trial has to be concluded on or before 25.03.2019. 6. Heard learned counsel for the parties and perused the record. 7. This Court has carefully gone through the order dated 01.03.2019 passed by learned trial Court. Learned Trial Court has given cogent reasons for rejecting the three applications, namely, Application Nos. 349 Kha, 348 Kha and 346 Kha. Learned trial Court was justified in rejecting applications Paper No. 349 Kha and 346 Kha, as the report of the Survey Amin for measurement of agricultural land has no relevance in a criminal trial, although it may be relevant before a civil or a revenue Court where question of title/possession over the land is in issue. 8. Similarly, learned trial Court was justified in rejecting the Application No. 348Kha for the reasons indicated in the impugned order. It is an admitted position that the defence cross examined P.W.-10 and P.W.-12 and it had sufficient opportunity to put all questions to these two prosecution witnesses at the time of cross examination. 9. Learned counsel for the applicant by referring to Paper No. 348 Kha submits that the request for recall of P.W.-10 & P.W.-12 for additional cross examination is justified in view of the reasons indicated in the application. 9. Learned counsel for the applicant by referring to Paper No. 348 Kha submits that the request for recall of P.W.-10 & P.W.-12 for additional cross examination is justified in view of the reasons indicated in the application. After going through the contents of the said application, I do not find any valid reason for allowing the said application, moreover, when similar application made by the defence for summoning P.W.-10 & P.W.-12 was rejected by trial Court by a reasoned order dated 20.02.2019, which was not challenged by the applicant. He is now challenging the order dated 01.03.2019, whereby his applications, paper Nos. 346 Kha, 348Kha & 349Kha has been rejected. 10. Learned counsel for the applicant submits that Paper No. 348Kha was in fact, an application under Section 311 read with Section 233(3) Cr.P.C., but due to inadvertent oversight, Section 231(2) was mentioned in place of Section 233(3). Hon’ble Supreme Court in the Case of State of M.P. Vs. Badri Yadav reported in (2006) 9 SCC 549 while dealing with a similar issue held as under: “12. In this case the application under Section 311 Cr.P.C. for recalling PW 8 and PW 9 and re-examining them was rejected by the court on 2-9-1994. Therefore, the question with regard to recalling PW 8 and PW 9 and re-examining them stood closed. There is no provision in the Code of Criminal Procedure that by filing affidavit the witnesses examined as PWs (PW 8 and PW 9 in this case) could be juxtaposed as DW 1 and DW 2 and be examined as defence witnesses on behalf of the accused. 13. Mr. A.T.M. Rangaramanujam, learned Senior Counsel for the respondent, however, contended that the accused is entitled to enter upon defence and adduce evidence in support of his case as provided under Section 233 Cr.P.C. particularly sub-section (3) of Section 233. Sub-section (3) of Section 233 reads: “233. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.” (emphasis supplied) 14. Section 233 itself deals with entering upon defence by the accused. Section 233 itself deals with entering upon defence by the accused. The application for recalling and re-examining persons already examined, as provided under Section 311 CrPC, was already rejected. The power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the court in case such evidence appears to it to be essential for a just decision of the case. Under Section 233 CrPC the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as a defence witness. In the present case PW 8 and PW 9 were juxtaposed as DW 1 and DW 2. This situation is not one what was contemplated by sub-section (3) of Section 233 CrPC. 15. When such frivolous and vexatious petitions are filed, a judge is not powerless. He should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the witnesses were examined by the prosecution as eyewitnesses on 18-12-1990, cross-examined and discharged. Thereafter, an application under Section 311 CrPC was rejected. They were recalled purportedly in exercise of power under sub-section (3) of Section 233 CrPC and examined as DW 1 and DW 2 on behalf of the accused on 17-7-1995. This was clearly for the purpose of defeating the ends of justice, which is not permissible under the law.” 11. Similarly, in the case of Ratanlal Vs. Prhalad Jat reported on (2017) 9 SCC 340 Hon’ble Supreme Court reiterated that discretionary powers available to a Court under Section 311 Cr.P.C. must be exercised with caution and circumspection and only for strong and valid reasons. Paragraph Nos. 17 to 21 of the said judgment extracted below: “17. Similarly, in the case of Ratanlal Vs. Prhalad Jat reported on (2017) 9 SCC 340 Hon’ble Supreme Court reiterated that discretionary powers available to a Court under Section 311 Cr.P.C. must be exercised with caution and circumspection and only for strong and valid reasons. Paragraph Nos. 17 to 21 of the said judgment extracted below: “17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted where under any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order. 18. In Vijay Kumar v. State of U.P.11, this Court while explaining scope and ambit of Section 311 has held as under: (SCC p. 141, para 17) “17. 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 [CrPC] 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. 19. In Zahira Habibullah Sheikh (5) v. State of Gujarat12, this Court has considered the concept underlying under Section 311 as under: (SCC p. 392, para 27) “27. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. 19. In Zahira Habibullah Sheikh (5) v. State of Gujarat12, this Court has considered the concept underlying under Section 311 as under: (SCC p. 392, para 27) “27. 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. 20. In State (NCT of Delhi) v. Shiv Kumar Yadav13, it was held thus: (SCC pp. 404g-405a) “… Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered 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. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered 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 the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined.” 21. The delay in filing the application is one of the important factors which has to be explained in the application. In Umar Mohammad v. State of Rajasthan14, this Court has held as under: (SCC p. 719, para 38) “38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed there-against and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself a pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed.” 12. Hon’ble Supreme Court in the case of Raja Ram Prasad Yadav Vs. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed.” 12. Hon’ble Supreme Court in the case of Raja Ram Prasad Yadav Vs. State of Bihar and another reported in (2013) 14 SCC 461 has culled out the principles which have to be borne in mind by a Court while dealing with an application under Section 311 Cr.P.C. Paragraph No. 17 of the said judgment is extracted below:- “17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts: 17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case? 17.2. The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person. 17.4. The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 17.8. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 17.8. The object of Section 311 Cr.P.C. simultaneously imposes a duty on the court to determine the truth and to render a just decision. 17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. 17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. 17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. 17.14. The power 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 care, caution and circumspection. 17.14. The power 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 care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.” 13. Section 311 of Cr.P.C. is extracted below for ready reference:- “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.” 14. Section 311 is in two parts. In first part the expression used is ‘may’ while in second part the expression used is ‘shall’. In consequence, the first part, which is permissive gives purely discretionary authority to a Criminal Court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways namely- (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined The second part which is mandatory imposes an obligation on the Court- (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 15. The aid of the Section should be invoked by the Court only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. 15. The aid of the Section should be invoked by the Court only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. However, it should not be used for filling up the lacuna by the prosecution or by 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 rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties, as held in Mohanlal Shamji Soni Vs. Union of India ( AIR 1991 SC 1346 ). 16. I have gone through the impugned order passed by learned trial court. Learned trial court has recorded valid reasons for rejecting the aforesaid three applications. Section 311 as well as Section 233(3) of Cr.P.C. confer discretion upon the criminal Court which has to be exercised in an appropriate case to meet the ends of justice or to arrive at a just decision. The applicant had sufficient opportunity to cross-examine the ballistic expert (P.W.10) as well as the doctor (P.W.12), who examined the applicant and prepared the injury report. There is no explanation, why the applicant did not cross-examine these two prosecution witnesses on the points which he is now seeking to cross-examine. Although there is no dispute that Section 311 of Cr.P.C. confers discretion upon the trial court to recall a witness or to re-examine any person already examined, however, this Court does not find this case to be of such nature in which the power under Section 233(3) read with Section 311 of Cr.P.C. could have been exercised. 17. Although there is no dispute that Section 311 of Cr.P.C. confers discretion upon the trial court to recall a witness or to re-examine any person already examined, however, this Court does not find this case to be of such nature in which the power under Section 233(3) read with Section 311 of Cr.P.C. could have been exercised. 17. In order to enable the Court to find out the truth and render a just decision the salutary provisions of Section 311 are enacted where under any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceedings can summon any person as witness or examine any person in attendance though not summoned as witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. However, re-examination of the witness after recalling him cannot be permitted in order to fill in lacunae by the defence. Further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. 18. In such view of the matter, there is no scope for interference with the impugned order. Accordingly, criminal miscellaneous application stands dismissed. The trial court shall proceed with the trial and conclude the same as expeditiously as possible.