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2022 DIGILAW 566 (ALL)

Ayush Anurag v. State of U. P.

2022-04-18

GAUTAM CHOWDHARY

body2022
JUDGMENT : 1. Heard Sri V.P. Srivaastava, Senior Advocate assisted by Sri Kamalesh Kumar Nishrad, learned counsel for the applicant, learned A.G.A. for the State, Sri Awadhesh Rai, learned counsel for O.P. No. 2 and perused the record. 2. This application has been filed with a prayer to quash the order dated 4.9.2021 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Ghaziabad in S.T. No. 192 of 2019 arising out of Case Crime NO. 1592 of 2016, under sections 328, 376, 504, 506 IPC and section 3/4 POCSO and section 66 I.T. Act, P.S. Sihani Gate, Ghaziabad and also to quash the order dated 12.11.2021 passed by learned Addl. Sessions Judge (Rape and POCSO Act), Court NO. 2, Ghaziabad. 3. It is contended by learned counsel for the applicant that O.P.No. 2 had lodged an F.I.R. on 3.10.2016 as case crime No. 712 of 2016, under sections 328, 376, 504, 506 IPC. P.S. Kotwali Ghaziabad, District Ghaziabad wherein it has been wrongly stated by O.P. No. 2 that prior to this F.I.R. her father has also lodged an F.I.R. in District Varanasi. Thereafter the matter has been investigated and charge sheet has been submitted on 4.3.217 whereupon the cognizance has been taken on 3.4.2017 against the applicant. It is next argued by learned counsel for the applicant that in the present case POCSO Act has also been levelled against the applicant but in support of age proof of O.P. No. 2 no document has been filed whereas according to prosecution case the O.P.No. 2 has taken the admission after passing the XII Class. 4. Now, the question before this court is that Section 311 Cr..P.C. provides as, "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. Witnesses can be examined at any time, but he can not be permitted in order to fill up the lacuna in the prosecution case. 5. Witnesses can be examined at any time, but he can not be permitted in order to fill up the lacuna in the prosecution case. 5. In support of his contention, learned counsel for the applicant has placed the reliance of Rajaram Prasad Yadav Vs. State of Bihar and another AIR 2013 SC 3081 , which is reproduced as under: "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: (a) 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? (b) 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. (c) 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. (d) 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. (e) 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." 6. Learned counsel for the applicant has also place the reliance of Md. Ghouseuddin Vs. Learned counsel for the applicant has also place the reliance of Md. Ghouseuddin Vs. Syed Riazul Hussain and another 2021 Supreme (SC) 858, paragraph No. 5 of the judgement is quoted below : "Having heard learned counsel for the parties and going through the record, we are of the considered opinion that even if the question as to the jurisdiction of the High Court need not be over-emphasized, the fact remains that the Trial Court had given sound and tangible reasons for rejecting the application for summoning of the document(s)-moved at such a belated stage and without any justification for such relief. The High Court has completely glossed over this aspect in the impugned judgment. The right to summon document(s) indeed, is available but that has to be exercised when the trial is in progress and not when the trial is completed, including after the statement of accused under section 313 of Cr.P.C. had been recorded. The efficacy of the trial can not be whittled down by such belated application." 7. Learned A.G.A. for the State as well as learned counsel for O.P. No. 2 state that as the section 311 Cr.P.C. provides that it is the satisfaction of the Court that he can recall any evidence at any time. There is no illegally or irregularity in the impugned orders, therefore, the same may not be quashed. 8. Considering the facts, circumstances of the case, submissions made by learned counsel for the applicant, learned A.G.A. and learned counsel for O.P. No. 2. The impugned orders suffer from illegality as it is only to delay the trial. The High School and Intermediate certificates are the most relevant documents for examining and ascertaining the age of the girl. Under such circumstances, the impugned orders dated 4.9.2021 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Ghaziabad as well as order dated 12.11.2021 passed by learned Addl. Sessions Judge (Rape and POCSO Act), Court No. 2, Ghaziabad are hereby quashed. 9. Accordingly, this application is allowed.