Back
2019 Supreme(All) 960
IN THE HIGH COURT OF ALLAHABAD
Rajul Bhargava, J.
Rohit And Others - Appellant
Vs.
State Of U.P. - Respondent
Application U/S 482 No. 23921 of 2019
Decided On : 01-08-2019
Pramod Shukla, Adv.
The judgment established the need to exercise the power under Section 311 Cr.P.C. with care, caution, and circumspection to prevent failure of justice and ensure fair trial for the accused, the victim, and the society.
Headnote:
Recall - Criminal Procedure - Section 311 Cr.P.C. - 147, 148, 149, 302/34 I.P.C. - [147, 148, 149, 302/34 I.P.C.] - The court discussed the provisions of Section 311 Cr.P.C. and its wide powers to recall a material witness at any stage of enquiry or trial for the just decision of a case. The judgment highlighted the duty of the court to maintain public confidence in the administration of justice and the need to exercise the power under Section 311 Cr.P.C. with care, caution, and circumspection to prevent failure of justice. The court also emphasized the constitutional goal of ensuring fair trial for the accused, the victim, and the society, and the necessity of applying the principle of recalling witnesses based on judicially established and accepted principles. The judgment referenced legal principles from State of Haryana v. Ram Mehar and others, 2016 (8) SCC 762 and Mohd. Khalid v. State of West Bengal, 2002 (7) SCC 334.
Fact of the Case:
The applicants sought to set aside the order dismissing the application under Section 311 Cr.P.C. to recall a witness for cross-examination in a double murder case. The court noted the deliberate delay in cross-examination by the accused, the subsequent change in testimony by a witness, and the mala fide intention of the accused in moving the recall application after eight months.
Finding of the Court:
The court found that the accused deliberately delayed the trial, exerted pressure on witnesses, and succeeded in winning over a witness. It concluded that the accused's conduct did not warrant the discretionary power of the court to recall the witness for cross-examination.
Issues: The issues involved deliberate delay in cross-examination, mala fide intention of the accused in moving the recall application, and the need to prevent failure of justice.
Ratio Decidendi: The court emphasized the duty to maintain public confidence in the administration of justice, the constitutional goal of ensuring fair trial, and the necessity of exercising the power under Section 311 Cr.P.C. with care and caution to prevent failure of justice.
Final Decision: The application was dismissed, and the trial court was directed to expedite the session trial and conclude it within nine months without granting unnecessary adjournments.
JUDGMENT :
Rajul Bhargava, J.
Heard Sri J.P.N. Raj, Advocate, holding brief of Sri Pramod Shukla, learned counsel for the applicants and learned A.G.A. for the State.
2. The present application under Section 482 Cr.P.C. has been filed to set-aside the impugned order dated 6.6.2019 passed by Sessions Judge, Baghpat in S.T. No.403 of 2017 (State vs. Rohit and others), arising out of Case Crime No.122 of 2017, under Sections 147, 148, 149, 302/34 I.P.C., P.S. Baleni, District Baghpat whereby the learned Judge dismissed the application under Section 311 Cr.P.C. to recall PW-1 for cross-examination.
3. Submission of the learned counsel for the applicants is that the learned Sessions Judge has illegally closed the opportunity of cross-examination by the defence on behalf of the applicants vide order dated 19.9.2018 and further the application for recalling the aforesaid order has also been illegally rejected by the learned Judge vide impugned order dated 6.6.2019. Learned counsel has submitted that if the defence is not given proper opportunity to cross-examine PW-1- Mange Ram, who is the first informant of the case, it will cause a serious prejudice to defence case as his testimony would go unrebutted. It is further argued that it is a fundamental right of an accused to have fair trial as envisaged under Article 21 of the Constitution and if the impugned orders are not set-aside then the main object of affording fair trial to accused in the spirit of life and liberty shall be greatly jeopardized. It is further argued that the courts have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. It is submitted that the powers to recall a witness under Section 311 Cr.P.C. is a very wide and could be exercised for the just decision of a case. The Section 311 Cr.P.C. empowers the Courts to recall material witness at any stage of enquiry or trial, if his evidence appears to it to be essential to the arrival at the just decision of a case.
4. The aforesaid impugned orders passed by the courts below are patently illegal and arbitrary and further no prejudice shall be caused to the prosecution, inasmuch as, the trial is already going on. Therefore, the cross-examination of PW-1, who is the first informant and eye-witness, is absolutely essential to arrive at just decision of the case. There was no wilful default on the parts of the applicants in not cross-examining the PW-1 with any oblique purpose, yet the trial court committed manifest illegality by closing the same vide order dated 19.9.2018.
5. Before, I deal with the arguments raised by learned counsel for the applicants, I may record that the applicants are accused in a broad day light double murder case which according to prosecution took place on 28.7.2017 at 7:30 A.M. The F.I.R. was lodged by PW-1 on the same day at 8:45 A.M. After thorough investigation, charge-sheet was laid against the accused and the case was committed before the sessions court. The trial commenced on denial by the accused and charges were framed on 23.4.2018 under Sections 147, 148, 302/149 I.P.C. Then, 26.6.2018 was fixed for recording of evidence and on that date the examination-in-chief of the first informant/eye-witness Sri Mange Ram was recorded. He narrated the prosecution version and the manner in which the applicants gunned down two persons. However, an adjournment application was moved on behalf of the accused-applicants and the cross-examination was suspended. The court fixed 12.7.2018 on which date PW-1, Mange Ram was present and again an adjournment application was moved on behalf of accused which was allowed with specific direction that on the next date adjournment shall not be allowed. On the next date i.e. 26.7.2018, the witness was not present and the court posted the case for 10.8.2018. However, on 10.8.2018 as the accused could not be produced from the jail before the court the case was adjo
