The case is called out.
Heard learned counsel for applicants, Sri Mohsin Iqbal, Advocate as well as learned Additional Government Advocate for State and perused the record.
The present application under Section 482 Cr.P.C. is directed against the order of the court below (learned Additional Sessions Judge, Court no.3, Faizabad) passed in Sessions Trial No.84/2013 by which the application of the accused applicants purported to be under Section 311 Cr.P.C. was rejected. The prayer made in the present application runs as under:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to exercise the powers under Section 482 Cr.P.C. and to quash the order dated 06.01.2021 passed by the learned Additional District and Sessions Judge, Court no.3, Faizabad, S.T. No.84 of 2013 (arising out of Crime No.3895 of 2012) U/S- 147, 148, 149, 336, 504, 302, 307, 506 IPC, Police Station- Kotwali Nagar, District Faizabad State Vs. Mohd. Siddique and others which is contained as Annexure No.4 to the petition, allow the petition under Section 482 Cr.P.C. and direct the learned Trial Court to firstly summon the doctor as well as injury report, Bed Head Ticket etc. of injured Suleman-PW-2 from K.G.M.U., Lucknow and thereafter conclude the trial, in the interest of justice."
It would be pertinent to reproduce para-2 of this application which is as under:-
"That the petitioners are involved in case crime No.3895 of 2012, under Section 147, 148, 149, 302, 307, 336, 504, 506 IPC of P.S.-Kotwali Nagar, District- Faizabad, which was registered on 8.12.2012 at 4:00 p.m. relating to the incident dated 8.12.2012 at 2.15 p.m. on the information of Mohd. Usman."
The certified copy of the impugned order is made Annexure No.4 to the present application. From perusal of the order dated 06.1.2021, it is obvious that the applicants have moved an application bearing No.234(Kha) in Sessions Trial No. 84/2013 (State Vs. Mohd. Saddam and Ors.) pending before that Court, to the effect that since the injured of the occurrence involved in the aforesaid Sessions Trial namely Suleman (PW-2) stated in his examination before the court that he was admitted in District Hospital, Faizabad from where he was referred to Lucknow by doctor, therefore, the said doctor alongwith bed head ticket and reference letter be called in the court for examination alongwith doctors at Trauma Center, Lucknow who made medical examination and treatment of the said injured, exercising the power vested in the court under Section 311 Cr.P.C. The impugned order has also mention of the fact that the applicants have not made clear, whether the proposed witnesses and evidences sought to be summoned in the court would be prosecution witnesses or the witnesses of the defence.
Further, learned court below observed that the said applications are moved in the mid of arguments impressing on the fact that First Information Report is anti-timed with a view to improve their case, though they themselves have led the evidence of their four witnesses in defence also. Learned court below further observed that after the closure of the prosecution evidence, the accused-applicants were examined under Section 313 Cr.P.C., were afforded opportunity to lead evidence and they virtually availed the said opportunities in the trial, thereafter the evidence in defence was led by them sufficiently. Therefore, the date was fixed for final argument long back in the year 2016.
Learned court below further observed that the applicants have no explanation as to why the proposed evidence and witnesses sought to be summoned could not be produced by them in the course when they were availing the opportunity to adduce evidence in defence before the Court. Further, learned trial court observed that though the application moved by the accused applicants under Section 311 Cr.P.C. have no justification and force to invoke the discretion of the Court, then also, this would be open for the court to call any such evidence or witness under Section 311 Cr.P.C. when it feels necessary in the interest of justice.
The fact as to the tactics to delay the decision in the trial, adopted by learned counsel for the defence is also taken note by the trial court itself. In its order, the court below mentions that despite the order of the High Court with regard to expeditious disposal, the trial was being posted from date to date since 26.05.2016 for final argument, whereas the earlier presiding officer had also heard the arguments and thereafter the present trial court also continuously hearing the arguments. It is now to sum up the hearing but any such need of evidence in the interest of justice has never been raised earlier at any stage of the arguments.
Learned court below further stated in the impugned order that within such a long span of time, no such application invoking the jurisdiction under Section 311 Cr.P.C. was moved by the learned counsel for the defence before 29.10.2020, is in itself suggestive of accused applicants' delaying tactics. Ultimately learned court below had dismissed the application, fixing 12.01.2021 for rest of the arguments.
Learned counsel for the accused applicants has also prayed for an interim order of staying the proceeding of aforesaid Sessions Trial No. 84/2013, he pressed today that the judgment in the case is likely to be pronounced tomorrow i.e. 03.02.2021.
Learned counsel summed up his arguments for invoking the discretion of this court under Section 482 Cr.P.C. with vehemence to stifle the proceeding of the court below at the stage of pronouncement of the judgment.
In support of his arguments, learned counsel for the applicant relied on the case law propounded by Hon'ble Supreme Court in the case of Manju Devi Vs. State of Rajasthan & Anr. reported in 2019 (2) JIC 279 (SC), wherein it is held that the trial court is not justified to reject the application under Section 311 Cr.P.C. merely on the reason that trial was pending for eight years.
Learned A.G.A. on his turn, submitted that no doubt the discretion of calling any witness not examined or recalling a witness has already been examined or if any evidence needed in the interest of justice is vested in the course before which trial is running but the exercise of the said discretion depends on the necessity to impart justice between the parties. The prosecution has examined all his witnesses including PW-2, 'Suleman' who was the injured witness in the incident along with the medical certificate, in corroboration of the statement therein. After closure of the evidence of prosecution, the applicant accused were called on in person by the court under Section 313 Cr.P.C. The questions were put before them on the basis of the prosecution evidence produced against them in the trial. When they were asked to produce any evidence or witness in their defence, they availed the opportunity and produced four witness in defence. Thereafter since 2016, the case is being posted for final hearing. It was materially heard on merit from time to time. The accused applicants have no explanation or justification why and under what circumstances they have sought invocation of discretion of the court under Section 311 Cr.P.C. to call for the evidence and witness afresh.
It is observed by this Court also that the applicants have neither stated in their application under Section 311 Cr.P.C. before the trial Court nor in their present application under Section 482 Cr.P.C. that how the said evidence and witnesses are relevant to which of the issue involved in the trial, therefore, the application under Section 311 Cr.P.C. seems flimsy and as such is having no force. On the other hand learned trial court in it's impugned order has elaborately discussed about the lack of justification of calling proposed evidence and witness in their application under Section 311 Cr.P.C. at the stage of final decision.
Section 311 Cr.P.C. reads as under:-
"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."
The Apex Court in case law Manju Devi (Supra) relied by the learned counsel for the applicants, discussed in its para-9.1 as under:-
9.1 It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity in so far as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the Court thereunder have been explained by this Court in several decisions 1. In Natasha Singh v. CBI (State) : (2013) 5 SCC 741, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under:-
" 8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at ?any stage? of ?any enquiry?, or ?trial?, or ?any other proceedings? under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.
15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC 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 great caution and circumspection. The very use of words such as "any Court", "at any stage?, or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.?
This would be also relevant here to mention the copy of the order dated 05.07.2017 of Hon'ble Supreme Court in Suleman Vs. State of Uttar Pradesh submitted by learned A.G.A. which relates to present Sessions Trial No.84/2013, the said order reads as under:-
"Delay condoned.
The case of the petitioner is that the trial is already in progress in S.T. 84/2013 regarding the incident in question where version of the complainant in the present case No.1604/2015 before the Chief Judicial Magistrate, Faizabad, U.P. can also be gone into.
In that view of the matter, the proceedings in the present case No.1604/2015 before the Chief Judicial Magistrate, Faizabad, U.P. may be taken up only after conclusion of the first trial.
The special leave petition is disposed of in above terms.
Pending applications, if any, shall also stand disposed of."
The accused applicants have no denial in their applications under Section 482 Cr.P.C. that they had availed the opportunity to adduce evidence and examine witnesses in their defence, moreover, they have sufficiently examined the PW-2, injured witness, Suleman alongwith the documentary evidences produced to prove the injury. Presently, as learned counsel for the present accused applicants submitted that the argument have already been submitted by learned counsels for the respective parties before the trial court and the judgment is likely to be pronounced tomorrow i.e. 03.02.2021. Court does not find any reason to interfere at this stage in the impugned order dated 06.01.2021 rejecting the application under Section 311 Cr.P.C. The applicants may not be permitted to stifle the proceeding without any reasonable cause. They may also not be permitted to fill up any lacuna in their defence particularly when the trial court in it's order impugned in the application has left open the room for exercise of it's discretion vested in it under Section 311 Cr.P.C. if it feels necessary, in the course of delivering it's judgment. The applicant's unnecessary attempt and intent to get retrial is not justified.
At this stage, when the present application under Section 482 Cr.P.C. is lacking any prominent issue which need be proved with the help of evidence and witnesses sought to be summoned as well as for lack of pleading as to reasonable apprehension, if their move under Section 311 Cr.P.C., not allowed what adverse effect would occasion, entailing gross injustice to them, this Court does not find any force in the application to interfere with the proceedings of court below.
On the basis of discussions made hereinabove, the applicants' application under Section 482 Cr.P.C. is REJECTED.
Deputy Registrar (Criminal) is directed to inform the result of the present application under Section 482 Cr.P.C. forthwith through e-mail or other ways to learned Additional District and Sessions Judge, Court No.3, Faizabad forthwith.
Order Date :- 2.2.2021 Gaurav/-