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2020 DIGILAW 288 (ALL)

Ajit Pratap Singh v. State of U. P.

2020-01-27

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. The applicant, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the order dated 13.12.2019, passed by learned Additional Sessions Judge, Court No. 2, Mainpuri, in Session Trial No. 3 of 2018, State of U.P. Vs. Vipul Pratap Singh and others, under Sections 498-A, 304-B, 504 I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Bhogaon, District Mainpuri (arising out of Case Crime No. 436 of 2017), at Police Station Bhogaon, District Mainpuri, wherein application moved under Section 311 Cr.P.C. for further examining applicant PW-1, his wife Shashi Prabha PW-3 and his son Rudra Pratap Singh PW-4 in above trial by application 28-A and the same was rejected. 2. Heard learned counsel for applicant, learned counsel for opposite party no. 2, learned A.G.A. for State and perused the record. 3. Learned counsel for applicant argued that applicant is complainant / informant of above case crime number, wherein death of his daughter under suspicious circumstances, within seven years of marriage, had occurred and it was by way of suicide regarding demand of dowry and cruelty by her husband and their close relatives, wherein bail to father-in-law, mother-in-law and brother-in- law were granted by this Court and bail to husband is still pending for disposal. The opposite party no. 3 is Police Inspector posted at Mathura, who is father-in-law of deceased, was exercising pressure over informant and his family members for not giving evidence against accused persons, otherwise to face dire consequences, but applicant was not afraid of it and this case crime number was got registered, wherein trial was proceeded, but applicant managed to get a forged case lodged for offence punishable under Section 376-D I.P.C. at Police Station Raya Mathura, wherein he managed to get co-accused Devendra Singh arrested, thereafter, a threat for giving evidence in favour of accused persons were extended and ultimately applicant succumbed to above threat. He, his wife and his son gave evidence before trial court and they have not supported case of prosecution. Even then, blackmailing was being made by accused persons. Then application was moved under Section 311 Cr.P.C. for re-examining those three witnesses, who were examined by trial court, because their evidence were under threat and were not independent evidence and this application 28A was rejected by trial court under abuse of process of law. Even then, blackmailing was being made by accused persons. Then application was moved under Section 311 Cr.P.C. for re-examining those three witnesses, who were examined by trial court, because their evidence were under threat and were not independent evidence and this application 28A was rejected by trial court under abuse of process of law. Hence, this application with above prayer. 4. Learned counsel for opposite party no. 2 has vehemently opposed this application with contention that in this very case crime number death by suicide had occurred at the place of informant i.e. not at the home of accused persons, even then, case was got lodged against accused persons, wherein charge sheet was submitted and trial was proceeded. There is a direction of Hon'ble Court for expeditious disposal of above trial that too within a stipulated period. Thereafter, applicant was summoned, but he did not appear for trial, whereupon warrant were issued against him and, thereafter, he appeared and was examined by court. After his examination, other witnesses were examined that too with interval, but at no point of time any allegation regarding threat was there and in those evidences, prosecution witnesses have not supported case of prosecution. Subsequently, with a view to malign and blackmail accused persons, who were innocent, an application under Section 311 Cr.P.C., was moved for summoning one witness Gyan Singh, who has not been examined under Section 311 Cr.P.C. This was objected by accused persons and it was rejected by trial court. Above order has not been placed on record. After above order, this application under section 311 Cr.P.C. with above prayer was moved and it was rejected by impugned order, which is well in accordance with law. This proceeding is itself under abuse of process of law. Hence, the same be rejected. 5. Learned A.G.A. has also vehemently opposed the application. 6. Having heard learned counsel for both sides and gone through material placed on record, it is apparent that applicant, his wife and his son were examined in examination-in-chief. Then, they were declared hostile upon the request of prosecution and they were cross-examined by prosecution itself. Again they were examined in cross-examination by defence counsel and all these witnesses have not supported case of prosecution. At no point of time it was raised before trial court that these testimonies were under coercion or under threat. Then, they were declared hostile upon the request of prosecution and they were cross-examined by prosecution itself. Again they were examined in cross-examination by defence counsel and all these witnesses have not supported case of prosecution. At no point of time it was raised before trial court that these testimonies were under coercion or under threat. Subsequently, another application was moved under Section 311 Cr.P.C.. Therein, also it was not mentioned. Ultimately, this application 28-A was moved on 19.11.2019 i.e. after a considerable lapse of time in between, with above prayer. 7. 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. 8. Meaning thereby, it is settled law that if the conditions under this Section are satisfied, the court can call a witness not only on the motion of either side or suo motu for examination of a witness, who had already been examined or present in the court or being summoned for examination for the end of justice and proper judicial decision making. The court has been empowered by this Section to summon witnesses, in cases where end of justice require so. It is enabling section, which enables court for examining witnesses either examined or to be examined for the end of justice, but this situation should be there. 9. In the present case, if situation is to be analysed, it is apparent that with a view to have favour in a case of rape being said to be lodged against applicant, he became hostile to prosecution case. Not only he, his wife and his son became hostile. They have not supported case of prosecution with a view to have favour in a case, which was said to be manipulated and lodged upon initiation of Police Inspector opposite party no. 3 against applicant. Though, above case crime number and F.I.R. is not with specific title or parentage or residence. They have not supported case of prosecution with a view to have favour in a case, which was said to be manipulated and lodged upon initiation of Police Inspector opposite party no. 3 against applicant. Though, above case crime number and F.I.R. is not with specific title or parentage or residence. It is merely with a name of Ajit Pratap Singh. How it is related with this case is not apparent therein. The applicant has yet not been arrested by Investigating Officer in above case, as has been argued by learned counsel for applicant, whereas in this case he had appeared before trial court, had given evidence and the evidence is with interval, wherein evidence was recorded by trial court and at no point of time this complaint was ever lodged neither any complaint of such threat was there, whereas it was said that since the beginning threat was being extended. The law laid down in Zahira Habibullah Sheikh Vs. State of Gujarat; 2004 (49) ACC 238, Vijay Kumar Vs. State of U.P.; 2011 (74) ACC 879, Natasha Singh Vs. C.B.I.; 2013 (82) ACC 387, Sheela Devi Vs. State of U.P.; Criminal Revision No. 1344 of 2018 Allahabad and Dinesh Kumar Mishra Vs. State of U.P.; 2019 (108) ACC 40, relies that principles governing Section 311 Cr.P.C. and end of justice is a sine qua non for exercise of jurisdiction under this section and in present case there is no frustration of end of justice at all. Accordingly, this application merits its dismissal. The application is dismissed as such. 10. Interim order stands vacated. The trial court is directed to make compliance of order given in this case regarding disposal, as mentioned in it.