HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 1462 of 2022

Om Prakash Singh @ Pappu Sapata …........ Applicant

Vs.

State of Uttarakhand and another …..... Respondents

Present : Mr. D.S. Mehta, Advocate for the applicant.

Mr. T.C. Aggarwal, Deputy Advocate General with Ms. Lata Negi, Brief

Holder for the State.

JUDGMENT

Hon’ble Sharad Kumar Sharma, J.

In a pending Sessions Trial No. 56 of 2017,

State vs. Om Prakash, the present applicant to the 482

Application, was being tried for his alleged involvement in

the commission of under Section 307 of the IPC which

was registered against him at Police Station Haldwani,

District Nainital.

2.

The grievance as raised by the present

applicant; in the present C-482 Application is as against

the impugned order of 04.07.2022, as it was passed by

the Court of 2^nd Additional Sessions Judge, Haldwani,

District Nainital, by virtue of which, the applicant’s

application under Section 311 Cr.P.C. has been rejected.

3.

If the provisions of Section 311 itself it’s taken

into consideration, the power which has been vested with

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the

Courts,

to

summon

the

witnesses

for

their

examination or reexamination as witnesses, at any stage

of the enquiry or trial or other proceedings, is a

discretionary power, which has to be exercised in relation

to those litigants, who are party to the proceedings and

who have been tried and who are diligent enough and

actively participate in the proceedings to facilitate in an

expeditious disposal of trial. The recourse of Section 311

Cr.P.C. to summon and examine the witnesses for the

reexamination, cannot be invariably permitted to be

utilized as a weapon as to delay the proceedings.

4.

The aforesaid observations made by this Court

could very well be culled out from the application

preferred by the applicant himself on 04.07.2022,

wherein, he has prayed for to summon the PW1 and PW2

for their cross examination, and the reason, which has

been given therein, in his application, under Section 311

of Cr.P.C., is only on the pretext that a proceeding by

way of a pending writ petition, before the High Court was

pending consideration, hence the PW1 and PW2 could not

be examined.

5.

First of all, the reasons, which had been given

in the application do not dispel, the correct intention of

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the present applicant, because pendency of a writ

petition, within itself cannot be construed as to be a

reason for the present applicant, not to cross examine the

witnesses despite of the consistent opportunity having

being provided by the Court, to the applicant, as observed

in its order of 25.04.2022, where the witnesses i.e. PW1

and PW2, who had appeared in the witness box had

rather produced themselves and were available to be

examined and cross examined. The applicant has not

avail that given opportunity, as recorded in the finding

given by the impugned order that the applicant has

voluntarily not examined PW1 on 25.04.2022.

6.

Hence so far as the application under 311 of

the Code of Criminal Procedure, is concerned for

summoning PW1 for his reexamination and cross

examinations, it cannot be permitted, because the

applicant himself has not availed the opportunity despite

the same having being provided by the Court on

25.04.2022. Hence the application under Section 311

Cr.P.C, would be deemed to be rejected, qua the prayer

for summoning PW1.

7.

As far as the opportunity sought for examining

of PW2 whose statement was otherwise supposed to be

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recorded by the learned trial court on the next date fixed

i.e. 02.05.2022, but PW2 couldn’t be examined because

the learned counsel appearing on behalf of the applicant,

was busy in some marriage and he could not attend the

court proceedings, in the Court on the date fixed and had

submitted an adjournment application.

8.

In that ev