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2019 DIGILAW 235 (ALL)

Dinesh Kumar Mishra v. State of U. P.

2019-01-30

SANJAY KUMAR SINGH

body2019
JUDGMENT : Sanjay Kumar Singh, J. Heard Sri Garunpal Singh, learned counsel for the revisionist and learned Additional Government Advocate for the State. 2. As per office report dated 2.1.2019 notice issued to opposite party no.2, pursuant to order dated 16.1.2017 of this Court, received back after service personally upon opposite party no.2, but no one is present on behalf of opposite party no.2 even in the revised list. 3. Learned Additional Government Advocate has pointed out that counter affidavit on behalf of State has been filed, which is on record. 4. Learned counsel for the revisionist does not propose to file rejoinder affidavit to the counter affidavit filed by the State. 5. This revision has been preferred by the revisionist under Section 397/401 Cr.P.C. against the order dated 15.12.2016 passed by IX Additional Sessions Judge, Mathura, whereby the learned Trial Court granted permission to prosecution to move application dated 15.12.2016 No. 26 kha under Section 311 Cr.P.C. in S.T. No. 137 of 2016 (State Vs. Rasik Mishra and others) arising out of case crime no.310 of 2015, under Sections 364, 302, 201, 120B IPC, Police Station Mahawan District Mathura and order dated 20.12.2016 passed by trial court, whereby trial court allowed the aforesaid application under Section 311 Cr.P.C. of the prosecution. 6. Brief facts of the case are that on 30.10.2015 FIR was lodged by one Sashi Kant Parasar/opposite party no.2, which was registered as Case Crime No. 310 of 2015, under Sections 302, 364, 201, 34, Police Station Mahawan, District Mathura against Girish Tiwari, Anurag Tiwari, Hemant Tiwari, Gopal Sharma, Rasik Mishra, Subash Mishra for committing murder of Vinay Kant (younger brother of the informant). 7. During the investigation, statement of co-accused Vinod Vasistha, Priyadarshini, Rasik Mishra and others were recorded in which they have taken name of present revisionist Dinesh Kumar Mishra, as such name of present revisionist came in light during investigation. Police has challaned Dinesh Kumar Mishra under Section 120B IPC and submitted charge-sheet against the revisionist, on which, learned Magistrate took cognizance of the offence on 5.2.2016 under Section 302, 201, 120B IPC against Rasik Mishra, Vinod Kumar, Dinesh Kumar Mishra (revisionist), Priyadarshani, Ved Prakash, Malti Devi and Madhu Mishra. After committing the case to the court of Session, charges under Section 120B, 364, 302 and 201 IPC have been framed against all the accused persons including revisionist, who have been charge-sheeted. After committing the case to the court of Session, charges under Section 120B, 364, 302 and 201 IPC have been framed against all the accused persons including revisionist, who have been charge-sheeted. During the trial, the examination-in-chief of PW-1 was recorded on 2.9.2016 and PW-2 was recorded on 14.12.2016. PW-2, Amit Parasar in his examination-in-chief did not disclose the name of present revisionist Dinesh Kumar Mishra. 8. On 15.12.2016 prosecution has moved an application 26 kha under Section 311 Cr.P.C. before the trial court mentioning that in the examination-in-chief of PW-2, some important facts regarding the "Fard" has left to write, which are essential in trial, therefore, prayed to recall the PW-2 Amit Parasar for putting some relevant questions to him. On the said application dated 15.12.2016 an endorsement of objection has made by the defence mentioning that prosecution has moved such application to fill up lacuna in the prosecution case, therefore, the application dated 15.12.2016 of the prosecution is liable to be rejected, but the trial court granted permission to the prosecution on 15.12.2016 to move the application, by mentioning the reason that since cross examination has not yet started and the witness is in the court, therefore, permission is granted to prosecution to move the application. By another impugned order dated 20.12.2016 learned trial court has turned down the objection of the defense and allowed the application no. 26 kha of the prosecution directing the prosecution to proceed with further examination-in-chief of PW-2 on 21.12.2016. 9. The contention of learned counsel for the revisionist assailing the aforesaid impugned order dated 15.12.2016 is that PW-2 Amit Parasar in his cross examination did not name the revisionist Dinesh Kumar Mishra, while he has named six persons, namely, Subash Mishra, Ved Prakash Mishra @ Radhe Patwari, Madhu Mishra, Malti Mishra, Rasik Mishra and Priyadarshini. It is next submitted that the prosecution has moved application dated 15.12.2016 under Section 311 Cr.P.C. to fill up the lacuna in the prosecution case, which is not permissible. The revisionist placed reliance on the following judgment and mentioned the same in ground no.3 of this revision. 1. Rajendra Prasad Vs. Narcotic Cell through its Officer-in-charge Delhi, (1999) 6 SCC 110 . 2. Mustakeem Vs. State of Uttar Pradesh, (2002) AllLJ 128 (Allahabad High Court). 10. The revisionist placed reliance on the following judgment and mentioned the same in ground no.3 of this revision. 1. Rajendra Prasad Vs. Narcotic Cell through its Officer-in-charge Delhi, (1999) 6 SCC 110 . 2. Mustakeem Vs. State of Uttar Pradesh, (2002) AllLJ 128 (Allahabad High Court). 10. Per contra, learned A.G.A. for the State has submitted that since cross examination of PW-2 was not started, therefore, application of the prosecution under Section 311 Cr.P.C. to bring on record the relevant material evidence through examination-in-chief of PW-2, is maintainable and learned trial court has rightly allowed the application under Section 311 Cr.P.C. of the prosecution. Much emphasis has been given on the point that that under the facts and circumstances, it cannot be said that the application dated 15.12.2016 was moved by the prosecution with the sole object to fill up the lacuna in the prosecution case. Lastly, it is submitted that the judgment relied upon by the learned counsel for the revisionist is not applicable under the facts and circumstances of the present case and is distinguishable on the facts of this case. 11. After having heard learned counsel for the parties and perusing the materials on record, I find that assailing the aforesaid impugned orders dated 15.12.2016 and 20.12.2016 of the trial court, this revision was filed on 11.1.2017 by the revisionist, but at the initial stage, no interim stay order was granted by this Court. On 16.1.2017 this Court passed the order only issuing notice to opposite party no.2 to file counter affidavit within three weeks. 12. In view of above, it appears that trial must have been proceeded at the advance stage. Revisionist did not bring on record the present status of the trial at the time of argument. 13. The Apex Court in the case of Rajaram Prasad Yadav Vs. State of Bihar and Another reported in, (2013) 14 SCC 461 has considered the nature and scope of Section 311 Cr.P.C. with regard to recall and re-examination of witnesses, in detail and settled the principles, which have to be borne in mind while considering the application under Section 311 Cr.P.C. The relevant extract of the said judgment are reproduced hereinunder: "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 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. 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. 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. 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." 14. Further the Apex Court in the case of A.G. Vs. 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." 14. Further the Apex Court in the case of A.G. Vs. Shiv Kumar Yadav and another reported in, (2015) 91 AllCriC 640 following the principles laid down by the Apex court in the case of Ram Prasad Yadav (supra) has held that the fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. It is not possible to lay down precise situations when such power can be exercised. The Legislature in its wisdom has left the power undefined. Thus, the scope of power under Section 311 Cr.P.C. has to be considered from case to case. In the said case, Apex Court has also observed that power of judicial superintendence under Article 227 of the Constitution of India and under Section 482 Cr.P.C. has to be exercised springily when there is a patent error or gross injustice. 15. So far as the judgment of Apex Court in Rajendra Prasad Vs. Narcotic Cell through its Officer-in-charge, Delhi, (1999) 6 SCC 110 relied upon on behalf of the revisionist, it is relevant to mention that the said judgment is not helpful to the revisionist, because the fact of the said judgment was entirely different. In the said case, trial was almost at the end and at the instance of prosecution, two of the witnesses, who were already examined, were re-summoned for the purpose of proving certain documents for prosecution. They were further examined and the evidence was once again closed and the case was posted for hearing arguments and the arguments were heard piecemeal on different days. Thereafter, Public Prosecutor moved an application seeking permission to examine PW-21 and two other persons. Though, the said application was stoutly opposed by the accused's counsel but the trial court allowed it in exercise of its power under Section 311 Cr.P.C. and summons were issued to the witnesses. The accused challenged the said order in the revision before the High Court of Delhi, the High Court entertained the revision and dismissed it. Though, the said application was stoutly opposed by the accused's counsel but the trial court allowed it in exercise of its power under Section 311 Cr.P.C. and summons were issued to the witnesses. The accused challenged the said order in the revision before the High Court of Delhi, the High Court entertained the revision and dismissed it. The order of the High Court was challenged before the Apex Court but criminal appeal of the accused was also dismissed by the Apex Court. The relevant observation and finding recorded by the Apex Court in the above case are reproduced herein-below:- "It is a common experience in criminal Courts that defence counsel would raise objections whenever Courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying that the Court could not 'fill the lacuna in the prosecution case'. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such latches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting, errors. 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. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." 16. Another judgment of Allahabad High Court in case of Mustakeem Vs. State of Uttar Pradesh, (2002) CrLJ 1516 relied upon by the revisionist is also not helpful to him, as the fact of the said case was also entirely different. Another judgment of Allahabad High Court in case of Mustakeem Vs. State of Uttar Pradesh, (2002) CrLJ 1516 relied upon by the revisionist is also not helpful to him, as the fact of the said case was also entirely different. In the said case, revision was directed against the order of trial court allowing the application moved by the prosecution under Section 311 Cr.P.C. for summoning three witnesses, namely, Station Officer, Writer of FIR and Doctor, who conducted the post-mortem of the deceased. Ground was taken in that case is that after prosecution evidence had been closed, the trial court had no power to fill up the lacuna in the prosecution case. The High Court dismissed the revision with the finding that the revision sans merits. The relevant observation made in the said judgment are reproduced herein-below:- "It is well settled that every criminal Court possesses power under Section 311, Cr.P.C. to summon or recall any witness at any stage of trial for a just decision of the case. In a case where the prosecutor fails to produce relevant material either on account of his oversight or mistake, it is the duty of every criminal Court to correct such laches or mistakes for a just decision of the case. If such a course is adopted by the Court, it cannot be said that it is filling up lacuna in prosecution case. A lacuna in prosecution is not to be equated with the fall out of an oversight committed by a public prosecutor during trial either in producing relevant materials or in eliciting relevant answers from witnesses. It should be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. 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. After all, function of the criminal Courts is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. This Court, therefore, does not accept the contention of the learned counsel for the applicant that while summoning three witnesses under Section 311, Cr.P.C. the trial Court filled up lacuna in the prosecution case." 17. This Court, therefore, does not accept the contention of the learned counsel for the applicant that while summoning three witnesses under Section 311, Cr.P.C. the trial Court filled up lacuna in the prosecution case." 17. In the present case, specific finding has been recorded by the trial court that the cross examination of PW-2 has not yet been started and the witness is in the court at the time of moving application dated 15.12.2016 under Section 311 Cr.P.C. therefore, it cannot be said and presumed that prosecution has moved application under Section 311 Cr.P.C. to fill up the lacuna in the prosecution case. 18. Considering the materials brought on record and keeping the Principles laid down by the Hon'ble Supreme Court as discussed above, this Court is of the view that presumption, observations and findings recorded by the trial Court in allowing the application under Section 311 Cr.P.C. of the prosecution under the facts and circumstances of the case are fully sustainable. The trial Court has committed no illegality in allowing the application of the prosecution in order to achieve ultimate goal of justice. There appears no abuse of process of the Court also. 19. In view of the above, the revision under Section 397/401 of the revisionist having no merit deserves to be dismissed. In the result, the revision sans merit and is, accordingly, dismissed. 20. Office is directed to communicate this order to the concerned trial Court.