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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SAURABH LAVANIA, J.
Ram Nayak Singh - Appellant
Versus
State of Up Thru.Secy. Home And Another - Respondent
Application U/s 482 No. 274 of 2022
Decided on : 24-01-2022
The Court held that the Trial Court, in the proceedings under the Code of Criminal Procedure, 1973, has ample/wide power to summon any material witness or person for examination or re-examination in exercise of its power conferred upon it under Section 311 and this discretionary power, which should be exercised judicially and not arbitrarily, can be exercised by the Trial Court at any stage of proceedings under the Code.
Fact of the Case:
The applicant, an accused in a criminal case, filed an application under Section 482 Cr.P.C. challenging the order of the Trial Court rejecting his application under Section 311 Cr.P.C. for recalling of witnesses. The applicant contended that the witnesses were not properly cross-examined by the earlier counsel and that their cross-examination was necessary for a just decision of the case.
Finding of the Court:
The Court held that the Trial Court had rightly rejected the application for recalling of witnesses. The Court noted that the application was filed after a delay of more than 12 years from the date of cross-examination of the first witness and after more than one month from the date of conclusion of the statement of the second witness. The Court also noted that the application was filed by a new counsel engaged by the accused and that the basic reason indicated in the application for recall of witnesses was that on some issues, the witnesses could not be cross-examined, whereas, from the statements of the witnesses, it appeared that both were duly cross-examined. The Court further noted that the Trial Court had observed that the application was filed with an intention to delay the proceedings. The Court agreed with the Trial Court's observation and held that the application was an abuse of process of law.
Issues: 1. Whether the Trial Court erred in rejecting the application for recalling of witnesses under Section 311 Cr.P.C.? 2. Whether the application for recalling of witnesses was filed as an abuse of process of law?
Ratio Decidendi: The Court held that the Trial Court had rightly rejected the application for recalling of witnesses. The Court noted that the application was filed after a delay of more than 12 years from the date of cross-examination of the first witness and after more than one month from the date of conclusion of the statement of the second witness. The Court also noted that the application was filed by a new counsel engaged by the accused and that the basic reason indicated in the application for recall of witnesses was that on some issues, the witnesses could not be cross-examined, whereas, from the statements of the witnesses, it appeared that both were duly cross-examined. The Court further noted that the Trial Court had observed that the application was filed with an intention to delay the proceedings. The Court agreed with the Trial Court's observation and held that the application was an abuse of process of law.
Final Decision: The Court rejected the application under Section 482 Cr.P.C. and upheld the order of the Trial Court rejecting the application for recalling of witnesses.
JUDGMENT :
SAURABH LAVANIA, J.
1. Heard learned counsel for the applicant as also Sri Anurag Verma, learned AGA for the State.
2. By means of present application under Section 482 Cr.P.C., a challenge has been made to the order dated 07.01.2022 passed by Special Judge (M.P./M.L.A. Court)/Additional Sessions Judge (Court. No. 07), Sultanpur in Sessions Trial No. 312 of 2008 (State v. Ram Nayak Singh & others), under Sections-147, 323, 427, 452, 506, 395, 394 IPC, P.S.-Jaisinghpur, District-Sultanpur, whereby, the Application No. 188 Kha preferred by the applicant under Section 311 Cr.P.C. for recalling of witnesses i.e. PW-1/Ram Newal Tiwari and PW-7/Smt. Kiran Tiwari has been rejected.
3. By the order dated 07.01.2022, in issue, an application No. 185 Kha preferred by complainant/PW-1-Ram Newal Tiwari under Section 319 Cr.P.C. for summoning two police officials namely Pradeep Singh and Ranvir Singh was also rejected but this part of the order is not in issue.
4. It transpires from record that respondent No. 2/Ram Newal Tiwari (PW-1) preferred an application under Section 156(3) Cr.P.C. before the competent Court of jurisdiction, whereupon, the Additional Chief Judicial Magistrate, Court No. 22, Sultanpur passed the order dated 23.06.2003 and in compliance thereof, a Complaint Case was registered against the applicant and others. Considering the offence against the applicant and others, the case was subsequently registered as Sessions Trial No. 312 of 2008 (State v. Ram Nayak Singh & others), which at present is pending before the Special Judge (M.P./M.L.A. Court)/Additional Sessions Judge (Court. No. 07), Sultanpur. In the Sessions Trial, the charges were framed on 04.11.2008 and thereafter, the respondent No. 2/Ram Newal Tiwari (PW-1) was examined and his examination was concluded on 27.01.2009. Thereafter, other witnesses of the prosecution were examined. The examination of last witness of fact i.e. PW-7/Smt. Kiran Tiwari was concluded on 18.11.2021. Thereafter, as per spirit of Section 313 Cr.P.C., the case was fixed for evidence of defence meaning thereby that it was fixed for examination of accused as also the defence witnesses, if any. On 24.11.2021, the statements of accused under Section 313 Cr.P.C. were recorded. Thereafter, an application dated 03.01.2022, wrongly mentioned as "03.01.2021", under Section 311 Cr.P.C. was moved by the new counsel engaged by the accused-applicant, which has been rejected by the order impugned in the present application.
5. Assailing the order dated 07.01.2022, learned counsel for the applicant submitted that in the application for recall of witness, the reasons for recalling of witnesses have been indicated, however, without considering the same, the Trial Court in mechanical manner rejected the application for recall of witness preferred under Section 311 Cr.P.C. The reasons recorded in the impugned order for rejecting the application are not cogent. He submitted that no doubt the examination of PW-1 was concluded on 27.01.2009, wrongly mentioned as "27.06.2009", however, the examination of PW-7 was concluded on 18.11.2021 and after considering the statements of PW-1 and PW-7 while preparing the case for arguments, it appeared to the counsel concerned that there are contradictions in the statements, as such, taking note of the same, the application for recall of witnesses under Section 311 Cr.P.C. was preferred, as such, there is no delay in moving the application and considering the same, the Trial Court ought to have allowed the application in issue, however, the same has been rejected.
6. It is also stated that for the purposes of fair Trial and to meet out the ends of substantial justice, the applicant is entitled to recall of witness for cross-examination on certain points as indicated in the application dated 03.01.2022 preferred by the applicant. He also submitted that the applicant is ready to deposit entire costs in relation to the witnesses aforesaid, if the present application is a
The Trial Court has ample/wide power to summon any material witness or person for examination or re-examination in exercise of its power conferred upon it under Section 311 Cr.P.C. and this discretio....
The power under Section 311 of the Code of Criminal Procedure must be exercised judiciously, with great caution and circumspection, to ensure fair trial and proper opportunities for all parties, and ....
The court established that the power under Section 311 CrPC to summon or recall witnesses is essential for ensuring a just decision in criminal trials, and must be exercised with caution to avoid pre....
Merely on asking the application under Section 311 of the Cr.P.C. cannot be allowed as there has to be sufficient reasons behind it.
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