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2023 DIGILAW 2168 (ALL)

Mustafa @ Chautha v. State of U. P.

2023-09-19

NEERAJ TIWARI

body2023
JUDGMENT : 1. Heard learned counsel for the applicant, learned A.G.A. for the State and Sri Ramesh Kumar Singh, Advocate holding brief of Sri Anil Kumar, learned counsel for opposite party No. 2. 2. The present 482 Cr.P.C. application has been filed to quash the order dated 15.05.2023 passed by Special Judge (POCSO Act)/Additional Session Judge, Mirzapur in S.T. No. 18 of 2014 (State Vs. Mustafa), arising out of Case Crime No. 581 of 2013, under Sections-294, 323, 504, 506 I.P.C., Police Station- Kotwali Dehat, District- Mirzapur. 3. Learned counsel for the applicant submitted that during the course of trial, it was found that certain questions are necessary to be asked from P.W.-8(Dr. Afzal Ahmad), therefore, applicant has moved application under Section 311 Cr.P.C to summon P.W.-8(Dr. Afzal Ahmad). It is next submitted that the questions proposed to be asked are very relevant for fair trial and justice to accused. He next submitted that the Apex Court in the matter of P. Sanjeeva Rao vs. The State of A.P.; Criminal Appeal Nos. 874-875 of 2012 (arising out of S.L.P. (Crl.) Nos. 4286-87 of 2011) has taken view that in all eventuality, even at the cost of delay of proceedings, application under section 311 Cr.P.C. has to be allowed to impart complete justice. The trial court, without appreciating the facts as well as considering the law laid down by the Apex Court, has rejected the application under Section 311 Cr.P.C. vide order dated 15.05.2023, which is bad and liable to be set aside. 4. Per contra, learned counsel appearing for opposite party No. 2 submitted that from the perusal of impugned order, it is apparently clear that defense has examined all the witnesses and matter was also listed for final hearing. At this stage, applicant has changed his counsel and now under the advise of a new counsel, applicant has filed application under Section 311 Cr.P.C. raising four questions after two and a half years after closing of cross-examination of P.W.-8 (Dr. Afzal Ahmad). While deciding the application under Section 311 Cr.P.C., learned trial court has considered all aspects and also returned finding upon the questions so raised. He firmly submitted that questions are not relevant and further, change of counsel cannot be ground for recalling the witness, once his testimony has been recorded and cross-examination has been closed. 5. Afzal Ahmad). While deciding the application under Section 311 Cr.P.C., learned trial court has considered all aspects and also returned finding upon the questions so raised. He firmly submitted that questions are not relevant and further, change of counsel cannot be ground for recalling the witness, once his testimony has been recorded and cross-examination has been closed. 5. I have considered rival submissions advanced by counsel for parties and perused the records. 6. From the perusal of impugned order, it is undisputed that after change of counsel, application dated 05.04.2023 under Section 311 Cr.P.C. has been filed for recalling the P.W.-8 (Dr. Afzal Ahmad), after around three years from the date of closing of cross-examination for asking four questions, which are being quoted herein-below:- ^^Á'u&Dk Án'kZ d&6 esa vfdar pksV fnukad 14&09&2013 dks le; 8-00 cts lqcg vkuk laHkkfor gS\ Á'u& lk{kh la[;k&8 ls ;g Hkh iwNk tkuk vko';d gS fd pksV dh vof/k dh x.kuk fdl vk/kkj ij fd;k gS\ Á'u&3 D;k ;g pksVsa fnukad 13&09&2013 dks 6-25 cts 'kke vkuk lEHkfor gS\ Á'u&4 VªkesfVd Losfyax ds pksV dh vof/k dh x.kuk dk vk/kkj D;k gS\ 7. While deciding the application, learned Judge has given detailed finding observing that ample opportunity was given to the applicant for examination of witness and case was listed for final hearing on 15.03.2023. At this stage, application dated 05.04.2023 under Section 311 Cr.P.C. has been filed by a new counsel, who has filed Vakalatnama only on 15.03.2023 on behalf of applicant. 8. Now, coming to the questions proposed to be asked from P.W.-8 (Dr. Afzal Ahmad). Question Nos. 2 & 4 are purely of academic nature, may be useful for medical student while examining the injury and question Nos. 1 & 3 are also having no relevance for trial as all facts relating to the time of injury is already mentioned in the injury report, which cannot be replied by P.W.-8 (Dr. Afzal Ahmad) at this belated stage. Therefore, all the questions are having no relevance for fair trial and adjudication of the case. 9. Now, coming to the judgments relied upon by learned counsel for parties. 10. Afzal Ahmad) at this belated stage. Therefore, all the questions are having no relevance for fair trial and adjudication of the case. 9. Now, coming to the judgments relied upon by learned counsel for parties. 10. So far as judgment of P. Sanjeeva Rao (Supra) is concerned, in that case, cross-examination of other witnesses was not completed and during that period application was filed for recalling the witnesses, but in the present case, after change of counsel, on his advice, application under Section 311 Cr.P.C. has been filed for recalling the P.W.-8 (Dr. Afzal Ahmad) for asking four questions, which are having no relevance with regard to the trial as earlier discussed. Therefore, this judgment would not come in rescue of applicant. 11. Apex Court in the matter of Vinod Kumar vs. State of Punjab; (2015) 3 SCC 220 has held that it is not appreciable to call a witness for cross-examination after such a long span of time. Relevant paragraphs of the judgment is quoted below:- “57.1 Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of. 57.2 As has been noticed earlier, in the instant case the cross-examination has taken place after a year and 8 months allowing ample time to pressurize the witness and to gain over him by adopting all kinds of tactics. 57.3 There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the trial is conducted as per law. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons. 57.4 In fact, it is not all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial. 57.5 The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safe-guarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute.” 12. Again, Apex Court in the matter of AG vs. Shiv Kumar Yadav; (2016) 2 SCC 402 has taken consistent view that change of counsel cannot be a ground for recalling the witness. 13. Let it be remembered that law cannot allowed to be lonely; a destitute.” 12. Again, Apex Court in the matter of AG vs. Shiv Kumar Yadav; (2016) 2 SCC 402 has taken consistent view that change of counsel cannot be a ground for recalling the witness. 13. This Court in the matter of Girish vs. State of U.P. and another (Application U/S 482 No. 4300 of 2020); 2020 SCC Online All 1062 relying on the judgment of Shiv Kumar Yadav(Supra) has rejected the application filed for summoning the P.W.-1 for cross-examination. Relevant paragraphs of the judgment is quoted below:- “5. Learned A.G.A. has also relied upon the judgment of Hon'ble Apex Court in AG v. Shiv Kumar Yadav, (2016) 2 SCC 402 . The relevant paragraphs of the aforesaid judgment are quoted below: “27. It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power under Section 311 Cr.P.C. is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined. 28. It will also be pertinent to mention that power of judicial superintendence under Article 227 of the Constitution and under Section 482 Cr.P.C. has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court[47]*. A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order. 29. We may now sum up our reasons for disapproving the view of the High Court in the present case: (i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross-examination. They were under no handicap. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross-examination. They were under no handicap. (ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at back of such counsel; (iii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice; (iv) The trial Court as well as the High Court rejected the reasons for recall of the witnesses; (v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed; (vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial; (vii) Mere change of counsel cannot be ground to recall the witnesses; (viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled; (ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall, i.e., denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings; (x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted.” 6. Considering the facts and circumstances of the case, arguments advanced and after going through the entire judgment, this court is of the view that the arguments advanced by the counsel is not sustainable and that the plea can not be taken by the revisionist's counsel that he has been subsequently engaged, therefore, one more opportunity may be given to him. It is within the rights of the litigant to engage any counsel at any stage but the engagement of the new counsel and the dawn of fresh wisdom upon the first informant cannot be allowed to further delay the matter. It is within the rights of the litigant to engage any counsel at any stage but the engagement of the new counsel and the dawn of fresh wisdom upon the first informant cannot be allowed to further delay the matter. The circumstances under which the application was rejected out are sufficiently shown in the impugned order. The impugned order does not reflect any element of inconsistency or any abuse of court's process which may persuade this Court to interfere in the same.” 14. Further, Apex Court in the matter of V.N.Patilvs.K.Niranjan Kumar and others; (2021) 3 SCC 661 has clearly held that power under Section 311 Cr.P.C. has to be exercised judiciously for strong and valid reasons and with caution. Relevant paragraphs of the judgment is quoted below:- “13. The scope of Section 311 Code of Criminal Procedure which is relevant for the present purpose is reproduced hereunder: 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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case. 14. The object underlying Section 311 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure have been well settled by this Court in Vijay Kumar v. State of Uttar Pradesh and Anr. 2011 (8) SCC 136 . “17. The principles related to the exercise of the power Under Section 311 Code of Criminal Procedure have been well settled by this Court in Vijay Kumar v. State of Uttar Pradesh and Anr. 2011 (8) SCC 136 . “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. Before directing the learned 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 and Ors. v. State of West Bengal and Anr. 2014 (13) SCC 59 and thereafter in Ratanlal v. Prahlad Jat and Ors. 2017(9) SCC 340 and Swapan Kumar Chatterjee v. Central Bureau of Investigation 2019 (14) SCC 328 . The relevant paras of Swapan Kumar Chatterjee (supra) are as under: “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. 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 reexamination 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 Code of Criminal Procedure 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 Code of Criminal Procedure has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice.” 15. In the light of facts mentioned herein-above, this Court is of the view that at a very belated stage, witness cannot be recalled for asking frivolous questions and that too on the advice of a new counsel. The law is very well settled that change of counsel cannot be a ground for recalling the witness. Not only this, after examination-in-chief, cross-examination should have been completed on the very same date and at this very belated stage, there would be no purpose for cross-examination as it is practically not possible for a witness to reply such technical questions. Power under Section 311 Cr.P.C. is always to be exercised very consciously for a very strong and unrebuttable reasons and not in a very casual manner as in the present case. 16. Therefore, under such facts and circumstances of the case as well as judgments of Apex Court and this Court, instant 482 application lacks merit and is accordingly, dismissed. 17. No order as to costs.