Back
2020 Supreme(All) 729
IN THE HIGH COURT OF ALLAHABAD
Rajiv Joshi, J.
Amarjeet @ Kaluwa – Applicant
Versus
State of U.P. and Another – Opposite Parties
Application U/S 482 No. -8463 of 2020
Decided On : 02-11-2020
Advocate Appeared:
For the Applicant : Mohd. Afzal
For the Opposite Parties : G.A., Pradeep Singh Sengar
Point of Law: 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, there is no ground to justify the recall of witnesses already examined
Headnote:
Code of Criminal Procedure, 1973 – Sections 233, 311 – POCSO Act, 2012 – Sections 3, 4 – Penal Code, 1860 – Sections 302, 307, 201, 376D, 394, 411 and 120 – Quashment of Order – Present application under Section 482 Cr.P.C has been moved with a prayer to quash the impugned order passed by Additional Session Judge, Hapur in Special Session Trial under sections 302, 307, 201, 376D, 394, 411 and 120 IPC and section ¾ POCSO Act, 2012 arising out of Case Crime, Police Station Hapur Dehat, whereby the application of the applicant moved under Section 311 Cr.P.C. for recalling PW-5 Nitin (injured witness) has been rejected –
Finding of the Court:
It is firstly stated that there is no requirement under the law to file questionnaire along with the application for recalling the witness and secondly that it is clearly mentioned in the application under section 311, Cr.P.C. itself that injured witness P.W.-5 Nitin is to be summoned with regard to the contents of his video clip. – When the accused-applicant is in jail, therefore, there is also no occasion to delay the proceeding of the trial. – There can be no dispute that the accused has a right to summon any evidence/witness which may be relevant for proper appreciation of the prosecution evidence and to substantiate his defence, therefore, in any case when the mobile and pen drive have already been exhibited in the record, then, recall of the injured witness appears to be necessary for his re-examination by the defence on the question of that video clip. – Taking into consideration the entire facts and circumstances as well as the earlier orders passed by this Court referred to above, in the considered opinion of this Court, no prejudice is likely to be caused either to the prosecution or the defence in case the injured witness P.W.-5 Nitin is recalled for his re-examination on the point of aforesaid video clip. – The trial court has not dealt with the merits of the case and proceeded to reject the application on irrelevant grounds. – Order passed by Additional Session Judge, Hapur in Special Session Trial No. 89 of 2018 (State Vs. Amarjeet @ Kaluwa and others) cannot be sustained in the eyes of law and the same is hereby set aside. –
Result: Application Allowed
JUDGMENT :
1. The present application under Section 482 Cr.P.C has been moved with a prayer to quash the impugned order dated 14.2.2020 passed by Additional Session Judge, Hapur in Special Session Trial No. 89 of 2018 (State Vs. Amarjeet @ Kaluwa and others) under sections 302, 307, 201, 376D, 394, 411 and 120 IPC and section ¾ POCSO Act, 2012 arising out of Case Crime No. 438 of 2018, Police Station Hapur Dehat, whereby the application ( No. 22/1) dated 10.01.2020 of the applicant moved under Section 311 Cr.P.C. for recalling PW-5 Nitin (injured witness) has been rejected.
2. Heard Sri Kamal Krishna, learned Senior Advocate assisted by Sri Mohd. Afzal, learned counsel for the applicant, learned A.G.A. for the State, and Sri Pradeep Singh Sengar, learned counsel for the opposite party no. 2. Perused the record.
3. The facts as reflect from the record are that opposite party no. 2 had lodged an FIR to the effect that on 05.09.2018 in the morning when he had gone to bring fodder from his field and his wife and son Himanshu had gone to Delhi due to some work, his daughter/victim aged about 12 years and son Nitin aged about 10 both were at home. At about 1.30 p.m. his nephew Lalit gave an information to the informant that Nitin has received some knife injury at his neck. Getting this information, he reached home and did not find his daughter there. Soon thereafter, he reached Nandani Hospital, where his son Nitin was admitted, on regaining consciousness, his son has disclosed that co-accused Ankur Teli and Sonu @ Pauwa were committing rape upon her sister and when he raised alarm, they had caused injury on his neck by knife and thereafter he concealed himself in the house. When he regained consciousness, he found himself in hospital. When informant reached at home along with police, he found the entire house hold goods scattered all over the place and jewellary etc. was missing. When police party made search of his daughter, her dead body was found in naked and dead condition in the room beneath straw. On this information, Case Crime No. 438 of 2018 was registered against the co-accused Ankur Teli and Sonu @ Pauwa at P.S. Hapur Dehat, District Hapur on 05.09.2019 at about 20.05 hours.
4. After investigation, charge sheet has been submitted in the case against the accused-applicant along with two other co-accused on 27.10.2018 under the above mentioned sections and after charges having been framed against the accused persons, statements of 13 witnesses have been recorded in the trial. The statement of PW-13, Kaushalendra Singh, Investigating Officer, was recorded before the trial court on 23.7.2019. The cross-examination of the said witnesses was done by the accused persons. Subsequently, on the basis of statement of PW-13, whereby the applicant came to know about some Compact Disc (C.D.) containing statement of the injured-Nitin, which was the part of case diary, he moved an application with a prayer that the C.D. containing videography of the statement of injured Nitin, may be given to the applicant and then cross-examination of PW-13 can be done. The said application dated 22.7.2019 was rejected by the trial court vide order dated 24.7.2019.
5. Against the aforesaid order, the applicant preferred an application u/s 482 Cr.P.C. No. 30532 of 2019, which was allowed by this Court on 16.9.2019 directing the trial court to provide a copy of the C.D.. Thereafter, an application was moved on behalf of the applicant for supply of a copy of the aforesaid C.D., which was rejected by the trial court vide order dated 22.10.2019.
6. Against the said order of the trial court dated 22.10.2019, the applicant again moved an application u/s 482 Cr.P.C. No. 39761 of 2019, which was allowed by this Court vide order dated 13.11.2019. The operative portion of the said order reads as under:
“I find that the Coordinate Bench of this Court had already passed an order dated 16.09.2019 directing for providing the copy of the said CD, therefore the best possible
