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Allahabad High Court · body

2023 DIGILAW 966 (ALL)

Harish Chandra v. State of U. P.

2023-04-10

UMESH CHANDRA SHARMA

body2023
JUDGMENT : 1. This application has been made by the accused applicant to quash the order dated 31/10/2008 passed by Additional Sessions Judge, Court No. 02, Shahjanpur in S.T. No. 799 of 2007 - State Vs. Harish Chandra and others, under Sections 304, 323 and 504 IPC. Police Station Pobayan, District Shahjahanpur, by which the learned Trial Court allowed the Application 13-B U/s 311 Cr.PC and summoned Maina Devi and Usha Devi as witnesses. 2. Heard Sri Pawan Kumar Dubey, learned counsel for the applicants, Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the record. 3. In brief, facts of the case are that complainant Ramesh Chandra lodged NCR No. 62 of 2007; against Harish Chandra, Matadeen, Sangam and ram Kumar and after death of injured Pankaj, the NCR was converted into FIR U/s 304, 323 and 504 IPC. IO recorded the statements of the informant and so called eye witness Babu Ram and after investigation submitted Charge sheet against the applicant under the aforesaid sections on 05/05/2007. from the bare perusal of the charge sheet it is crystal clear that the statement of the Maina Devi and Smt Usha Devi were neither recorded U/S 161 Cr.P.C nor a single word is mentioned in the case diary regarding their presence at the alleged place of incident that's why their name have not been mentioned in the list of witnesses. During the trial statements of PW1 Ramesh Chandra, PW-2 Babu Ram and PW-3 Sukhlal have been recorded. 4. On 06/05/2008 both the proposed witnesses moved an application U/s 311 Cr.PC before ASJ Court no. 02 Shahjahanpur with the prayer that on 02/04/2007 at the time of the incident they were with Pankaj and they received injuries during the course of saving the deceased, they are the injured eye witnesses and were medically examined on 05/04/2007 in PHC. Original injury reports had been taken by the police. They are annexing its photocopies. Police did not made them (injured) witness under the connivance of the accused persons. Accused are influential persons who have got all the witnesses hostile. Therefore for the just decision of the case the applicants be summoned as witness. 5. An objection was invited and considered and thereafter by the impugned order, application 13-B has been allowed by the trial court concluding that there is injury report in support of the application under section 311 CrPC. Therefore for the just decision of the case the applicants be summoned as witness. 5. An objection was invited and considered and thereafter by the impugned order, application 13-B has been allowed by the trial court concluding that there is injury report in support of the application under section 311 CrPC. For just decision of the case any witness can be examined or re-examined at any stage U/s 311 CrPC and any person can be summoned for evidence. 6. Learned ASJ has wrongly and illegally allowed the application and summoned them as witness which is highly unjust, improper and against the correct provision of the law. Hence, the application be allowed and the impugned order be quashed. 7. For Connivance section 311 CrPC is produced as under :- "Section 311 in The Code Of Criminal Procedure, 1973. 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. 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 Vs. 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. 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. 10. In R.B. Mithani Vs. State of Maharashtra, A.I.R. 1971 SC 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. 11. In State of Haryana Vs. Ram Prasad, 2006 Cr.L.J. 1001, the Punjab & 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. 12. In Shailendra Kumar Vs. State of Bihar, A.I.R 2002 (SC) 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. 13. In Ramasami Vs. 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. 13. In Ramasami Vs. 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. 14. In Rama Paswan Vs. 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. 15. 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. Vs. 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 defence case. 16. In averment of para 14 to 17 in V.N. Patil Vs. 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". 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. 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 v. State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547 and thereafter in Ratanlal v. Prahlad Jat, (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 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 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. 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. 17. 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. 17. Mentioning the name of all witnesses in FIR or in statements u/s 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 Vs. 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. Instead of the above citation in Raj Kishor Jha Vs. State of Bihar, 2003 (47) ACC 1068 (SC), Chittarlal Vs. State of Rajasthan, (2003) 6 SCC 397 , Shri Bhagwan Vs. State of Rajasthan, (2001) 6 SCC 296 , Satnam Singh Vs. State of Rajasthan, (2000) 1 SCC 662 , the apex court has held similar principles of law. 18. The trial court has ample power to summon any person as witness for the just decision of the case. In this case when according to the proposed witnesses they had received injuries with the deceased on and at the time of the incident and they had also been medically examined even then their statements had not been recorded by the IO and in spite of getting their medical report, the same has not been annexed with the charge sheet and when there is serious allegation against the IO that he was under the connivance with the accused persons that's why they (the alleged injured eye witnesses) had not been mentioned as witnesses to weaken the prosecution case, this court is of the view that in the aforesaid circumstances it was bounden duty of the court to summon and examine the aforesaid witnesses. In the aforesaid circumstances the trail court has rightly allowed the application and ordered to examine the applicants for just decision of the case. 19. In the aforesaid circumstances the trail court has rightly allowed the application and ordered to examine the applicants for just decision of the case. 19. Thus, it cannot be said that by passing such order the trial court is trying to fill up the lacuna of the prosecution. The impugned order is based on sound and cogent reason. The applicants could not establish any ground on which basis this court may exercise its inherent jurisdiction as the impugned order is not the abuse of the process of the court. Hence the application is liable to be rejected. ORDER 20. The application u/s 482 Cr.P.C. is accordingly dismissed. Let the copy of this judgement be sent to the court concerned.