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2021 DIGILAW 1015 (ALL)

Gaurav Gulati @ Dipesh Gulati v. State of U. P.

2021-09-06

GAUTAM CHOWDHARY

body2021
JUDGMENT : Gautam Chowdhary, J. 1. Learned counsel for the applicant files rejoinder-affidavit today, taken on record. 2. Heard learned counsel for applicant, learned A.G.A. for the State, Sri Kamlesh Kumar Dwivedi, learned counsel for O.P. No. 2 perused the record. 3. This application has been filed with a prayer to set aside the order dated 12.2.2021 passed in the application moved by the counsel for the accused/applicant rejecting the application paper No. 100 Kha in S.S.T. No. 447 of 2015 (State v. Gaurav Gulati @ Dipesh) arising out of case crime No. 607 of 2015, under Sections 394, 302, 201, 411 IPC, P.S. Hariparwat, District Agra and further may be pleased to direct the learned Court below to summon the Dr. Sunil Yadav, under Section 311 Cr.P.C. as a Court witness to get him examine on oath for just decision of the case. 4. It is contended by learned counsel for the applicant that the FIR of the present against the unknown person has been lodged on 23.6.2015 with case crime No. 607 of 2015, under Sections 394, 302 IPC, P.S. Hariparwat, District Agra. After lodging the FIR the inquest report of both the deceased namely Km. Diksha nd Smt. Rama Gulati were prepared and doctor opinion the cause of death due to shock and hemorrhage as a result of anti mortem injury. Thereafter the I.O. claims to have recorded the statement of Nidhi Gulati, who is the married daughter of informant on 25.6.2015 on the basis of suspicion because after murder of her sister and mother the applicant has not came into the house of her parent. Thereafter I.O. further claims that when the applicant was arrested he told his name and father's name and on seeing his hands carefully, there were some injuries on his palm and fingers caused by sharp edge weapon and showed false recovery from his possession on 28.6.2015 and after making arrest of the applicant he was sent to medical examination in the clinic of Dr. Sunil Yadav posted as Emergency medical Officer, district Hospital, Agra wherein the medical examination report of the applicant was conducted and doctor noted Nil injury. After completing the investigation, the I.O has submitted the charge-sheet against the applicant, on which the learned Magistrate has taken the cognizance and case was committed to the Court of sessions as SST No. 447 of 2015. 5. After completing the investigation, the I.O has submitted the charge-sheet against the applicant, on which the learned Magistrate has taken the cognizance and case was committed to the Court of sessions as SST No. 447 of 2015. 5. It is further contended by learned counsel for the applicant during pendency of trial the applicant has filed an application under Section 311 Cr.P.C. for summoning of the Dr. Sunil Yadav, as a Court witness, who had conducted his medical examination for just decision of the case but the learned trial Judge vide order dated 12.2.2021 had rejected the application filed under Section 311 Cr.P.C. filed by the applicant without considering the facts and circumstances of the case. 6. Learned counsel for the applicant has also placed the reliance of Hon'ble Supreme Court in the case of Natasa Singh vs. CBI (State), on 8.3.2019 wherein it has been stated that: ''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. In Mir Mohd. Omar and Others vs. State of West Bengal, AIR 1989 SC 1785 , this Court examined an issue wherein, after the statement of the accused under Section 313 Cr.P.C. had been recorded, the prosecution had filed an application to further examine a witness and the High Court had allowed the same. This Court then held, that once the accused has been examined under Section 313 Cr.P.C. in the event that liberty is given to the prosecution to recall a witness, the same may amount to filling up a lacuna existing in the case of the prosecution and therefore, that such an order was uncalled for.'' Learned counsel for the applicant has again placed the reliance of this Court in the case of Manju Devi v. State of Rajasthan, which is quoted below: On the other hand, Mr Senthil Jagadeesan has drawn the attention of the Court to the depositions of PW-1 and PW-11. Adverting also to the purported Board Minutes at Annexure P-2 (a photocopy of which has been filed at Annexure R-2 of the counter-affidavit), it has been submitted that the document, as a matter of fact, does not have the signatures of the members of the Board. Moreover, it has been urged that PW-1, who is the Chairman of TANGEDCO, during the course of his deposition, submitted that he had granted sanction for the prosecution of the respondent and the co-accused without reference to the Board, and that he was entitled to do so in accordance with the provisions of the PC Act. It needs hardly any emphasis that the discretionary powers like those under Section 311 Cr.P.C. are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity in so far as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 Cr.P.C. and amplitude of the powers of the Court thereunder have been explained by this Court in several decisions. In Natasha Singh vs. CBI (State), (2013) 5 SCC 741 , though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter-alia, 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, the 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. 7. Learned counsel has again drawn the attention of the Section 311 Cr.P.C. which is as under: ''that the object underlying Section 311 Cr.P.C. 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 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 the discretionary power conferred under Section 311 Cr.P.C. has to be exercised judiciously, as it is always said “wider the power, greater is the necessity of caution while exercise of judicious discretion.” 8. In reply of the above contention, learned A.G.A. as well as learned counsel for O.P. No. 2 placed the reliance in the case of Sri Asha vs. State of U.P. decided on 18.11.2020 in Crl. Misc. Application No. 13126 of 2020, which is quoted below: ''17. The powers under Section 311 Cr.P.C. is the discretion or the obligation of the Court to summon or recall a witness, but this discretion of the Court cannot be forced to be used by the accused or the prosecution. While considering the present case it is clear that on behalf of the deceased sister an application under Section 311 Cr.P.C. had been moved in which no ground at all were brought forward as to why the witness needs to be summoned for examination whereas PW-1 who is eye-witness has been examined and cross-examined. Applicant here is sister of deceased, who is not the informant nor the witness in the case and prosecution has examined PW-1, who is real brother and eye-witness of the deceased. Applicant here is sister of deceased, who is not the informant nor the witness in the case and prosecution has examined PW-1, who is real brother and eye-witness of the deceased. There are 36 witnesses whose statements have been recorded by Investigating Officer. All are not required to be examined. Prosecution has to consider which witness has to be produced and to be examined. Out of 36 witness, 11 prosecution witnesses have been examined and prosecution evidence have been closed. The Hon'ble High Court while rejecting bail application of accused, directed the Court below to conclude the trial expeditiously within a period of two months from the date of production of certified copy of this order. In application, no reason has been given as to why earlier, application for examination of witness has not been moved and what is relevancy of his examination. The prosecution was given much opportunity to produce evidence and prosecution examined all the witness to whom he wanted to be examined but when Hon'ble High Court passed the order for expedite the trial then to linger on the case, moved present application under Section 311 Cr.P.C. It is well-settled law that under Section 311 Cr.P.C. cannot be invoked mere to fill up lacuna of the case but to fair and just decision of the case. 18. In the end, I do not find any illegality in the impugned order requiring any interference by this Court in exercise of inherent power under Section 482 Cr.P.C. and consequently, the prayer for quashing the impugned order dated 24.2.2020 passed by Additional Sessions Judge, Court No. 3, Saharanpur in S.T. No. 605 of 2015, Crime No. 169 of 2014 filed under Sections 147, 148, 149, 302, 120-B I.P.C. Police Station Kotwali, District Saharanpur is refused.'' 9. From the perusal of the application filed under Section 311 Cr.P.C. as well as the order passed therein and submissions made by learned counsel for the both the parties and the case law cited by both the parties, as well as the provision itself permits that the Court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case, the impugned order dated 12.2.2021 is hereby quashed and matter is remitted back to the Court concerned to pass an appropriate order after hearing both the parties within a period of two weeks from the date of production of computer generated copy of this order. 10. Accordingly this application is partly allowed.