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2023 DIGILAW 215 (ALL)

Mehboob Pandey v. State of U. P.

2023-01-20

UMESH CHANDRA SHARMA

body2023
JUDGMENT Umesh Chandra Sharma, J. Heard Sri Shad Khan holding brief of Sri Mumtaz Ali, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned A.G.A. For the State and perused the record. 2. This application has been moved for quashing the order dated 20.10.2022 passed by A.S.J Court No. 2 Bulandshahr whereby he rejected the application under section 311 Cr.P.C for recalling the witnesses PW-2, PW-3, PW-6, PW-8 and also to direct the learned trial court to recall the aforesaid witnesses for cross examination for proper and fair adjudication of S.T. No. 1401 of 2010 arising out of crime no. 203 of 2009, under section 147, 148, 149, 302 and 120-B I.P.C Police Station Sikandrabad District - Bulandshahr. 3. In brief, facts of the case are that during the course of the trial the applicant has been in jail since 20.12.2010. Seven Session trial cases are consolidated together and leading case is S.T. No. 853 of 2009, the applicant is a very poor person. Due to non payment of fees, local counsel did not cross examine PW-2 Rizwan Ansari, PW-3 S.I Hari Singh, PW-6 Mohsin and PW-8 I.O Virendra Singh. The applicant somehow recently engaged Mr. Krishn Kumar Saxena advocate as his counsel who moved an application under section 311 Cr.P.C on 19.10.2022 and requested the trial court to recall the aforesaid witnesses for cross-examination on behalf of the applicant. 4. Prior to that an application no. 98A1 had been moved on behalf of the applicant for recall of the witnesses PW-1 to PW-3 for cross examination and the then learned trial judge vide order dated 9.10.2012 had allowed the application with the direction that the application shall remain deferred under Section 231 (2) Cr.P.C. Despite such direction, the said witnesses were never recalled for their cross examination by the trial court. The cross examination of the aforesaid witnesses is very significant for proper and fair adjudication. The learned trial court without applying judicial mind and without perusing the previous order rejected the recall application in a routine manner. Hence, it is expedient for the ends of justice for invocation of inherent powers under Section 482 Cr.P.C by this court. 5. All the papers referred in the petition are annexed with the affidavit. 6. The learned trial court without applying judicial mind and without perusing the previous order rejected the recall application in a routine manner. Hence, it is expedient for the ends of justice for invocation of inherent powers under Section 482 Cr.P.C by this court. 5. All the papers referred in the petition are annexed with the affidavit. 6. From the perusal of the impugned order it is very much clear that the learned trial court did not peruse the Order Sheet that so far as the cross examination of the PW-1 to PW-3 is concerned, applicants application has already been considered by the then learned trial judge on 9.10.2012 in view of Section 231 (2) Cr.P.C. It has also not been considered that for an accused who is in jail for such a long period, it is very much difficult to defend himself if his family members and the counsel are not cooperative with him. The scheme of the examination of the witnesses has been enumerated in chapter - X of The Indian Evidence Act and according to Section 137 of the Act, the witness would be called for his examination in chief, cross examination and re-examination if the party calling him wants his re-examination. There is no provision in Indian Evidence Act that if on any particular date, the witness could not be cross examined by the opposite party, he would not be again recalled for cross examination. However, if the witness could not be cross-examined in spite of sufficient opportunity provided by the Court, cross examination may be closed or if the accused refuses to cross examine the witness, the cross examination might be closed. Certainly, the closer of the cross-examination might be opened if due to some unavoidable circumstance, the witness could not be cross examined on behalf of the accused. This fact should be in the mind of the learned trial judge that if an opportunity for cross examination is not provided to the accused, it would be violation of natural justice. It is the basic principle of natural justice that an opportunity must be provided to the accused for cross examination and hearing. In case the witness has not been examined, the evidence of the examination in chief would be considered in toto against the accused and it would remain un-rebutted and this situation would be a mockery of justice due to mere technicalities. 7. In case the witness has not been examined, the evidence of the examination in chief would be considered in toto against the accused and it would remain un-rebutted and this situation would be a mockery of justice due to mere technicalities. 7. To avoid such circumstances Section 311 Cr.P.C has been incorporated in the code of criminal procedure which is as under: "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. From the above, it is very much clear that there are two part of this Section. According to first part of the Section, the Court can exercise the power :- (1) to summon any person as a witness, or. (2) to examine any persons 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 and 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. 9. In Raja Ram Prasad Yadav v. State of Bihar and Anr. A.I.R 2013 (SC) 3081, it has been held that it is, therefore imperative that invocation of Section 311 Cr.P.C and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provisions, namely, for achieving a just decision of the case. The power vested under the said provisions is made available to any court at any stage in any inquiry or trial or other proceedings initiated under the code for the purpose of summoning any person as a witness or for examining any persons in attendance, even though not summoned as witnesses or to re-call or re-examine any person in attendance. The power vested under the said provisions is made available to any court at any stage in any inquiry or trial or other proceedings initiated under the code for the purpose of summoning any person as a witness or for examining any persons in attendance, even though not summoned as witnesses or to re-call or re-examine any person in attendance. In so far as recalling and re-examining of any person already examined, the court must necessarily consider and ensure that such re-call and re-examination of any person, appears in the 3 of 8 view of the court to be essential for the just decision of the case. 10. In Raja Ram Prasad Yadav v. State of Bihar and Anr. A.I.R 2013 (SC) 3081, it has been held that it is, therefore imperative that invocation of Section 311 Cr.P.C and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provisions, namely, for achieving a just decision of the case. The power vested under the said provisions is made available to any court at any stage in any inquiry or trial or other proceedings initiated under the code for the purpose of summoning any person as a witness or for examining any persons in attendance, even though not summoned as witnesses or to re-call or re-examine any person in attendance. In so far as recalling and re-examining of any person already examined, the court must necessarily consider and ensure that such re-call and re-examination of any person, appears in the view of the court to be essential for the just decision of the case. 11. In R.B. Mithani v. State of Maharashtra, A.I.R. 1971, Supreme Court 1630, the Hon'ble Supreme Court has held that additional evidence summoned must be necessary not because, it would be impossible to pronounce judgement but also because there would be failure of justice without it. Though the power must be exercised sparingly and only in suitable case but once such action is justified, there is no restriction on the kinds of evidence, which may be received. It may be formal or substantial in nature. 12. Though the power must be exercised sparingly and only in suitable case but once such action is justified, there is no restriction on the kinds of evidence, which may be received. It may be formal or substantial in nature. 12. In State of Haryana v. Ram Prasad 2006 Cr.L.J. 1001, the Punjab of Haryana High Court held that where the examination and re-examination of the witness is essential for the just decision of the case, it is obligatory of the Court to summon such a witness. 13. In Shailendra Kumar v. State of Bihar, A.I.R 2002 (Supreme Court) 270, it is held that if there is any negligence, latches or mistake by not examining material witness, the Courts function to render just decision by examining such witness at any stage is not, in any way impaired. 14. In Ramasami v. Sriniwasan 1987 (3) Crimes 89 Madras, it is held that the criminal court is not just umpire to deal only the material brought by the parties before it. The court has to play an active role in the administration of criminal jurisprudence. Though, it is not normal duty of the court to collect evidence, in cases where justice requires, the Court has power to further inquire into the matter in order to ascertain the truth. 15. In Rama Paswan v. State of Jhharkhand, 2007 Crl. L.J. 2750, the Hon'ble Supreme Court has held that it would not be improper, the exercise of the power 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, inquiries and trials under the Court and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or inquiry. 16. The applicant-accused is of the view that by allowing the application under Section 311 Cr.P.C and by summoning the witnesses and keeping the documentary evidence on record, the accused-applicant have been prejudiced. In this respect in Popat Lal & Ors. 16. The applicant-accused is of the view that by allowing the application under Section 311 Cr.P.C and by summoning the witnesses and keeping the documentary evidence on record, the accused-applicant have been prejudiced. In this respect in Popat Lal & Ors. v. State of Maharashtra, 2002, Crl.L.J. 794, the Bombay High Court has held that Section 311 Cr.P.C. is not granted only for the benefit of the accused and it will not be improper exercise of power of the Court, if the Court summons a witness only because the evidence will support the prosecution case and not the defense case. 17. The averment of para 14 to 17 in V.N Patil v. Niranjan Kumar and others, (2021) 3 SCC 661 , are relevant hence they are reproduced as under : - "14. The object underlying Section 311 CrPC 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 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion". 15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240 : (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 the Code 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. Discretionary power should be exercised consistently with the provisions of the Code 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. Before directing the learrned Special Judge to examine Smt Ruchi Saxena as a court witness the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason." 16. This principle has been further reiterated in Mannan Shaikh v. State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547 and thereafter in Ratanlal v. Prahlad [ (2017) 9 SCC 340 : (2017) 3 SCC (Cri) 729 and Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839 . The relevant paragraphs of Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839 are as under: Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839, SCC p. 331, paras 10-11). "10. The first part of this section which is permissive gives purely discretionary authority to the 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, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law." 17. The aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice." 18. In the aforesaid case, the appeal was allowed by the apex court and the order of High Court was set aside and order of the trial court regarding summoning of the witnesses and production of document was restored. 19. Mentioning the name of all witnesses in FIR or in statements under section 161 CrPC is not a requirement of law. Such witnesses can also be examined by prosecution with the permission of the court. Non-mentioning of the name of any witness in the FIR would not justify rejection of evidence of the eye-witness. In para 13 of Bhagwan Singh v. State of M.P, 2002 (44) ACC 1112 (SC) it was held that that there is no requirement of law for mentioning the names of all the witnesses in the FIR, the object of which is only to set the criminal law in motion. In the cited case Kiran (PW 7) herself was injured and being the niece of Hari Ram (deceased), had no reason to involve innocent persons in the commission of the crime. In addition to the above citation in Raj Kishor Jha v. State of Bihar, 2003 (47) ACC 1068 (SC), Chittarlal v. State of Rajasthan, (2003) 6 SCC 397 , Shri Bhagwan v. State of Rajasthan, (2001) 6 SCC 296 , Satnam Singh v. State of Rajasthan, (2000) 1 SCC 662 , the Apex Court has held similar principles of law. 20. 20. On the basis of above discussion this Court comes to the conclusion that the trial Court has committed manifest error in not considering the previous order dated 9.10.2012 and it has also been failed in considering the recall application in right prospective hence, this application is liable to be allowed. Order This application is allowed and the impugned order dated 19.10.2022 is quashed and the application under section 311 Cr.P.C is allowed. The learned trial court is directed to summon the witness PW-2, PW-3, PW-6 and PW-8 for their cross examination by and on behalf of the applicant Mahboob Pandey. It is also directed that the learned trial court shall provide sufficient opportunity to the applicant for cross examination for the aforesaid witnesses.