IMPORTANT POINT
The essentiality of evidence for a just decision of the case is the primary factor in deciding the application under Section 311 Cr.P.C.

JUDGMENT :

Heard learned counsel for the revisionists, learned counsel for the opposite party No.2 and learned A.G.A. for the State.

2. The present criminal revision has been instituted against the impugned judgement and order dated 11.05.2023 passed by Special Judge (E.C. Act), Fatehpur in S.T. No. 679 of 2020 (State Vs. Shiv Mohan and others) arising out of Case Crime No. 88 of 2020 under sections 323, 504, 304 I.P.C., Police Station- Malwan, District- Fatehpur.

3. By the impugned order, the trial court has rejected the application 16-B filed by the revisionist no. 1 under section 311 Cr.P.C. to summon P.W.1 Balwant Singh for cross-examination.

4. Learned counsel for the revisionists submitted that regarding the incident, an N.C.R. against Raj Kumar and Gore Lal was registered by P.W.1 Balwant Singh. The accused, Shiv Mohan also got registered an F.I.R./N.C.R. No. 46 of 2020 under Section 323, 504 I.P.C., Police Station-Malwan, District- Fatehpur. In the F.I.R./N.C.R. of the alleged incident registered by the revisionist no. 1, his son had received serious injuries in the same incident. It has been also submitted that in the case registered by Balwant Singh, after investigation, charge-sheet has been filed in Case Crime No. 88 of 2020 under Sections 323, 504, 304 I.P.C. against revisionists and two other co-accused persons. It has also been submitted that the revisionist no. 1 has filed an application under Section 311 Cr.P.C. in the court concerned for examination of P.W.1 Balwant Singh, which was rejected. The record was not available and no investigation was done in the aforesaid N.C.R. No. 46 of 2020. Inspite of the order passed in N.C.R., record has been lost in the police station. It has been also submitted that both F.I.R. and N.C.R. relates to the same incident, in which, charge sheet was filed against the revisionists and others on his side. The revisionist no. 1 has received grievous injury on his parietal left skull. The defence was entitled to ask question to P.W.1 Balwant Singh regarding injury received by Raj Kumar and Gore Lal on the side of accused. It has also been submitted that the trial court has rejected the application filed under Section 311 Cr.P.C. without application of mind and ignoring the provision of law.

5. Per contra, learned counsel for opposite party No.2/ informant has submitted that the trial court has passed the impugned order considering the facts of the case and law applicable for summoning witnesses u/s 311 Cr.P.C. It has also been submitted that there is no illegality in the impugned order. It has also been submitted that the revisionists/ defence has not mentioned in the application under Section 311 Cr.P.C. any specific question to be asked to P.W.1 Balwant Singh in cross-examination. It has also been submitted that P.W.1 Balwant Singh is not named in the N.C.R. There is no occasion to summon P.W.1 for cross-examination. It has also been submitted that in the case relating to application under Section 311 Cr.P.C., the statement of P.W.1 Balwant Singh was recorded on 17.03.2011 and his cross-examination was concluded on 17.11.2021. The revisionists were granted sufficient time to cross-examine P.W.1 Balwant Singh. The revisionists have not filed copy of N.C.R. lodged by him against opposite party nos. 2 and persons of his side.

6. Learned counsel for the revisionists and learned counsel for the opposite party no. 2 have relied upon the following rulings in support of their arguments :-

(i) Application U/S 482 No. 25531 of 2022, Rajendra Kumar Vs. State of U.P.

(ii) Mohanlal Shyam Ji Soni Vs. Union of India and Another, decided in 1991

(iii) Rajaram Prasad Yadav Vs. State of Bihar and others, AIR 2013 SC 3081

(iv) State (NCT of Delhi) Vs. Shiv Kumar Yadav and Another, (2016) 2 SCC 402.

7. The learned counsels for both parties have been heard. Perused the record of criminal revision including the impugned order.

8. The revisionist, Shiv Mohan has filed application u/s 311 Cr.P.C. on 17.07.2022 for