Court No. - 73
Case :- APPLICATION U/S 482 No. - 16204 of 2019
Applicant :- Durga Prasad Kesharwani And 2 Others Opposite Party :- State Of Up And Another Counsel for Applicant :- Ravindra Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
This application has been filed to quash the impugned order dated 04.04.2019 passed by the IIIrd Additional Sessions Judge, Chitrakoot in Session Trial No. 110 of 2007 (State Vs. Durga Prasad and others) arising out of Case Crime No. 12 of 2007 under Section 307 of IPC, police station Bargarh, District Chitrakoot whereyby the court below has rejected the application of the applicants filed under Section 311 Cr.P.C. for recall of witnesses.
Heard learned counsel for the applicants and learned AGA for the State and perused the record.
Learned counsel for the applicants has argued that the impugned order is against the law and thus, liable to be set aside. In view of the facts mentioned in the application filed under Section 311 Cr.P.C., the recalling of the alleged eye witnesses was necessary. Learned trial court has not assigned proper reasons to reject the application of the applicants. It was submitted that the clarification from witnesses was required on certain points, which were mentioned in the application.
Learned AGA has opposed that application and argued that the sessions trial is pending since the year 2007 and that all the material witnesses have already been examined. It was argued that after examination of all the material witnesses, the applicants/accused have filed the application under Section 311 Cr.P.C. with mala-file intention and to delay the trial while proper and sufficient opportunity was granted to the applicants to cross examine the witnesses.
It is apparent from the perusal of the impugned order that the application filed by the applicants to recall the prosecution witnesses for cross-examination has been rejected. Learned trial court has passed a detailed and reasoned order while rejecting the application of the applicants. It is well settled that discretion under Section 311 Cr.P.C. is to be exercised by the trial court only if such evidence is necessary for just decision of the case. It is apparent from the record that the material witnesses have already been examined and proper sufficient opportunity was granted to the applicants-accused persons to cross- examine the witnesses. In fact the witnesses have been cross-examined at length. Considering the facts of the matter, the recalling of the witnesses, for asking the questions as mentioned application filed by the applicants under Section 311 Cr.P.C., was not warranted. Learned trial court has assigned appropriate reasons to reject the application.
Learned counsel for the appellants has relied upon in the case of Kamlesh Singh Vs. State of UP reported in Laws(All) 2016 9 171 and Parsuram pandey Vs. State of Bihar. Applying the law laid down in these cases in the facts of the present case, it could be said that recalling of the witnesses was necessary for just decision of the case.
The questions raised by the applicants in their application are trivial nature. The determinating factor is whether the recalling of the witnesses is essential for just decision of the case as held in case of Kamlesh Singh (Supra) but in the present case, considering the entire facts it does not appear that recalling of the alleged witnesses was necessary for just decision of the case. No substantial illegality or irregularity could be pointed out in the impugned order. It is well settled that jurisdiction under Section 482 Cr.P.C. is to be exercised cautiously and sparingly. In the present case, it is also apparent that the above stated sessions trial case is pending since the year 2007.
Learned trial court has considered entire facts and came to the conclusion that no case for recalling the witnesses is made out. No apparent illegality could be pointed out in the impugned order and thus, no prima facie case for invoking jurisdiction under Section 482 Cr.P.C. is made out.
Application is, accordingly, rejected.
Order Date :- 25.4.2019
Mohit Kushwaha