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Section.311 CrPC – Application was moved on the ground that a new counsel has been engaged.

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Hon’ble Alok Mathur, J.
CRIMINAL REVISION No. – 321 of 2021

Amrit Lal

Vs.

State Of U.P. Ors.

Counsel for Revisionist :- Santosh Kumar Srivastava; Counsel for Opposite Party :- G.A.

1. Heard Sri Santosh Kumar Srivastava, learned counsel for the revisionist as well as learned A. G. A on behalf of the State.

2. By means of the present revision the revisionist has assailed order dated 15.3.2021 passed by Special Judge POCSO Act-I, Ambedkar Nagar in Sessions Trial No.124 of 2015 (State Vs. Amrit Lal and others) arising out of case crime No.24 of 2015, under Sections 498-A, 304-B, 201 IPC and Section 3/4 of Dowry Prohibition Act relating to police station Baskhari, District Ambedkar Nagar.

3. It has been submitted by learned counsel for the revisionist that the revisionist had moved an application under Section 311 of Cr.P.C. on 15.3.2021 for re-examination of P.W.-1 Manraji and P.W.-2 Anita. In the said application it was stated that earlier counsel had failed to put forth proper questions to the said witnesses and, therefore, in the interest of justice the said wittinesses deserve to be re-examined.

4. Learned court below while rejecting the said application has taken into account the fact that P.W.-1 Manraji was examined on 6.10.2016 and her cross examination was also concluded on 20.3.2017 while examination-in-chief of P.W. 2 Anita was recorded on 5.7.2017 and her cross examination was concluded on 4.8.2017 and, therefore, there is no explanation of delay of nearly four years in moving the said application. It has also been recorded that the said application does not seem to be in the interest of justice and has been filed only to keep the trial pending.

5. Learned counsel for the revisionist while pressing the said revision has submitted that only one day’s time may be granted for re-examination of P.W.-1 and 2 but he could not satisfy this Court about the reasons for the delay in moving the said application which is about four years.

6. This Court in similar circumstances while examining the validity and legality of application under Section 311 Cr.P.C. in the case of Mamta Kumari Vs. State of U.P. and another passed in Criminal Revision No.342 of 2021 on 6.5.2021 has held as under:-

“..To examine the validity of the impugned order, as well as examine the scope of the power under section 311 Cr.P.C. before the trial Court, it is necessary to look into the statutory provisions and its interpretation by the Hon’ble Apex Court.

9. Section 311 Cr.P.C. reads 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 re-examine any such person if his evidence appears to it to be essential to the just decision of the case”

10. The Supreme Court in the case of Jamatraj Kewalji Govani Vs. State of Maharashtra – AIR 1968 SC 178, has held in paragraph 14 that:-

“14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court’s action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.”

11. In the decision reported in Mohanlal Shamji Soni vs. Union of India and another, 1991 Suppl.(1) SCC 271, the Apex Court again highlighted the importance of the power to be exercised under Section 311 Cr.P.C. as under in paragraph 10:-

“10….In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re- examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.”

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12. In the decision in Raj Deo Sharma (II) vs. State of Bihar, 1999 (7) SCC 604, the proposition has been reiterated by the Apex Court as under in paragraph 9:-

“9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five-Judge Bench in A.R. Antulay case nor in Kartar Singh case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and re-examine any such person.”

13. In U.T. of Dadra and Nagar Haveli and Anr. Vs. Fatehsinh Mohanish Chauhan, 2006 (7) SCC 529, the decision has been further elucidated by the Supreme Court as under in paragraph 15:-

“15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filling in a lacuna in the prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice.”

14. In Iddar and Others Vs. Abida Others, AIR 2007 SC 3029, the object underlying under Section 311 Cr.P.C., has been stated by the Apex Court as under in paragraph 11:-

“11. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is ”at any stage of inquiry or trial or other proceeding under this Code’. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.”

15. In P. Sanjeeva Rao Vs. State of A.P., AIR 2012 SC 2242, the scope of Section 311 Cr.P.C. has been highlighted by the Apex Court by making reference to an earlier decision of the Court and also with particular reference to the case, which was dealt with in that decision in paragraphs 13 and 16, which are as under:-

“13. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas Vs. Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in this regard apposite:

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“In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.”

16. Considering all the previous judments, the Supreme Court outlined certain principles for excise of power under section 311 Cr.P.C. in the case of Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461.

“17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts:

a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 Cr.P.C. is noted by the Court for a just decision of a case?

b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.

d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

f) The wide discretionary power should be exercised judiciously and not arbitrarily.

g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.”

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—–

“18. In order to examine the validity and legality of the order passed by the trial court rejecting the application under Section 311 Cr.P.C. preferred by the revisionist we have to advert to the various pronouncements of the Hon’ble Apex Court as referred to herein above where it has been stated that the object underlining Section 311 of the code is that there may not be a failure of justice on account of mistake of either party in bringing valuable evidence on record or leaving ambiguity in the statement of witnesses examined from either side, and on the other hand the exercise of power has to be made on settled principles as enumerated in the case of Rajaram Prasad Yadav (Supra).

19. With regard to the scope of an application under Section 311 of the code for recall of the witnesses it has been observed by the Hon’ble Apex Court in the case of State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 :

“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, we do not find any ground to justify the recall of witnesses already examined.”

20. The precipice of the abovementioned Judgments is that the primary object of the application under section 311 Cr.P.C. is to ensure a fair trial and any evidence which may be brought on record should in fact be taken on record so as to prevent any failure of justice, but on the other hand such an application has to be filed in bona fide manner for advancement of securing a fair trial and even extends to correct any bona fide error.

21. Adjudicating a similar controversy the Hon’ble Supreme Court in the case of Umar Mohammad other’s v state of Rajasthan [2007] 14 SCC 711, upheld the rejection of the application under Section 311 of the code where the same was filed after 9 months of the deposition of the prosecutrix and after 4 years of the incident and it was observed that the delay was itself of pointer to the fact that the victim had been won over. It was further observed that “it is absurd to content that he, after a period of 4 years and that too after his examination in chief and cross examination was completed, would file in application on his own will and volition. The Supreme Court upheld the order of trial court and observed “application was, therefore rightly dismissed”.

7. The application under Section 311 Cr.P.C. was moved by the revisionist on the ground that a new counsel has been engaged. It is not the case of the revisionist that he was unrepresented or that he was denied fair opportunity to cross examine the witnesses. In case such a ground is accepted then it will eternally lead to procrastination of trial or it will always be open to a party to engage a new counsel and to move fresh application under Section 311 Cr.P.C. In the present case, there is no satisfactory explanation for the delay or that proper opportunity was not afforded or any new development has occurred which was not in the knowledge of the revisionist at the time of the cross examination.

8. Looking into the aforesaid legal proposition and the fact that the said application has been moved after four years and there being no justifiable reason for the delay, this Court is not inclined to entertain the said application which ex-facie seems to be only to procrastinate the trial. Accordingly, there is no merit in the revision and the same is accordingly dismissed.

9. Needless to say that the trial court should proceed with the trial and conclude it expeditiously.

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