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IN THE HIGH COURT OF ALLAHABAD
UMESH CHANDRA SHARMA, J.
Nanhe And Another – Appellants
Versus
State of U.P. and Another – Respondents
Application U/S 482 No. - 43085 of 2022
Decided on : 10-04-2023
Criminal Procedure Code, 1973 - Section 482, 311 – Indian Penal Code, 1860 - Sections 364, 302, 201 - Cross-examination - Examination of witnesses – Quash order - Application for quashing order - Application had been moved during course of examination of witnesses – Accused-appellants have right to crossexamine witnesses. [Para 23]
Finding of the Court: In Rajendra Prasad Vs. Narcotic Cell Delhi, Hon'ble Supreme Court has held that it cannot be laid down as legal preposition that Court cannot exercise power of re-summoning any witness, if once that power was exercised, nor can power be whittled down merely on ground that prosecution discovered latches only when defence highlighted them during final arguments - Power of Court is plenary to summon or even re-call any witness at any stage of case, if Court considers it necessary for a just decision - Accused-appellants have right to crossexamine witnesses - Since P.W. 6 & 7 were material witnesses, therefore to provide full opportunity to crossexamine such witnesses was duty of trial court - Impugned order, passed by trial court is hereby quashed.
Result: Application allowed.
JUDGMENT :
1. Heard learned counsel for the applicants, Sri Pankaj Kumar Tripathi, learned A.G.A for the State and perused the record.
2. This application under Section 482 Cr.P.C has been instituted by the applicants for quashing the order dated 17.10.2022 passed by Special Judge (E.C. Act) / Additional Sessions Judge, Court No. 4, Moradabad passed in, arising out of Case Crime No. 48 of 2018, under Sections 364, 302, 201 I.P.C, Police Station Katghar, District Moradabad, whereby the applications filed under Section 311 Cr.P.C. of the applicants/accused have been rejected.
3. In brief, the facts of the case are that after submission of the charge-sheet in the aforesaid crime number, the trial is going on. On 18.08.2022 and 15.09.2022 examination-on-chief of P.W 6 and P.W 7 had been recorded. On 18.08.2022 when the applicants’ counsel was out of station, an adjournment application was moved and on 15.09.2022, the applicants’ counsel was busy in another Court, the opportunity of cross-examination from the witnesses had been closed and when the application under Section 311 Cr.P.C was moved by the applicants on 17.10.2022, it was rejected same day by the impugned order stating therein that examination-in-chief of P.W. 6 had been recorded on 18.08.2022 and allowing the adjournment application on 22.08.2022 had been fixed for cross-examination. On 22.08.2022 P.W 6 was present since morning, but none appeared to cross-examine him hence at 3:20 cross examination had been closed.
4. On 15.09.2022 the examination-in-chief of P.W. 7 S.I. Mukesh had been recorded at 11:00 a.m. and the applicants were directed to call for their counsels but the counsels did not appear, therefore opportunity to cross examining P.W. 7 had been closed at 4:45 p.m.
5. The learned trial court concluded that since sufficient opportunity had been provided, but the witnesses had not been cross-examined, hence, there was no sufficient ground to allow the application 45-B under Section 311 Cr.P.C and accordingly rejected the application and fixed 07.11.2022 for examination of rest of the witnesses. Being aggrieved, this application has been moved on behalf of the applicants. Neither the State nor opposite party no. 2 have filed any objection/counter affidavit.
6. The application had been moved during the course of examination of the witnesses. It is crystal clear that the trial court has not provided proper opportunity and equal protection of law to the defence side while several dates have been given to the prosecution for examination of the witnesses without any adjournment, the learned trial court closed the cross-examination same day, rejecting the adjournment application of the defence.
7. Learned trial judge could not understand the abstracts behind the section in which the accused persons had moved application to recall the witnesses for cross examination.
8. It would be proper to quote Section 311 Cr.P.C, which is as under :
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.”
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. 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
The main legal point established in the judgment is that the power of a trial Court under Section 311 of Cr.P.C. to allow re-examination of a witness for the purpose of conducting cross-examination o....
The court emphasized that the power under Section 311 Cr.P.C. must be exercised judiciously to ensure a fair trial and should not be used merely to fill gaps in evidence.
Point of Law : To meet the ends of justice, the door cannot be shut against the accused persons without giving opportunity to cross-examine the witness only after he came to know that in another sess....
The right to cross-examine witnesses is a statutory and fundamental right, crucial for ensuring a fair trial, necessitating courts to allow such opportunities to the accused.
Recall of witness – Paramount requirement is just decision and for that purpose essentiality of a person to be recalled and re-examined has to be ascertained.
The wide powers conferred upon the courts under Section 311 CrPC to summon or recall a witness at any stage if their evidence is essential for a just decision.
Power to summon material witnesses under Section 311 Cr.P.C. which falls under Chapter XXIV containing general provisions as to inquiries and trials has been held to confer a very wide power on court....
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