Court No. - 72
Case :- CRIMINAL REVISION No. - 2491 of 2021 Revisionist :- Sajan Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sushil Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the revisionist and learned Additional Government Advocate representing the State and perused the materials available on record.
This criminal revision under Section 397/401 Cr.P.C. has been preferred by the revisionist against the order dated 22.9.2021 passed by the learned Special Additional Sessions Judge (POCSO Act), Muzaffar Nagar in Special Sessions Trial No. 1068/9 of 2020 (State vs Sajan) arising out of Case Crime No. 680 of 2020, under Sections 452, 354-A, 354-B, 323, 504, 506 IPC and 7/8 of POCSO Act, 2012, Police Station Kotwali City, District Muzaffar Nagar, whereby an application under Section 311 Cr.P.C. dated 22.9.2021 of the accused-revisionist for recall of PW-1, Amit Kumar for re-examination has been rejected by the trial court.
The basic facts of this case, in brief, are that opposite party No. 2, Amit Kumar, who is uncle of the victim has lodged the first information report on 21.9.2020 against the present applicant, Sajan for the offence under Sections 452, 354-A, 354-B, 323, 504, 506 IPC and 7/8 of POCSO Act, 2012, Police Station Kotwali City, District Muzaffar Nagar.
The main substratum of argument of learned counsel for the revisionist is that though the opportunity of cross-examination was given to the revisionist with PW-1, but some relevant question could not put to him therefore an application dated 22.9.2021 was moved to recall the PW-1. It is submitted by learned counsel for the revisionist that the trial court has committed illegality in rejecting the application under section 311 Cr.P.C.
of the revisionist on the aforesaid facts, because in not providing an opportunity for re-examination to PW-1 serious prejudice is caused to the revisionist. It is also stated that since the contents of the affidavit and the FIR are different, therefore, detailed cross-examination from PW-1 is required in the interest of justice. Lastly, it is submitted that the impugned order dated 22.9.2021 is not sustainable in the eyes of law and is liable to be set aside by this Court.
Per contra, learned A.G.A. vehemently opposed the prayer of the revisionist by contending that application under section 311 Cr.P.C. has been moved by the revisionist with ulterior motive only with a view to get PW-1 resiled from his previous statement. It is also submitted that in the application under section 311 Cr.P.C. it has not been mentioned that which relevant question is required to be put to PW-1, which has not already been asked to him and the application of the revisionist is wholly vague and general in nature. Lastly, it is submitted that there is no illegality in the order dated 22.9.2021 as it is settled law that the application under section 311 Cr.P.C. cannot be allowed to fill up the lacunae, as such, the present revision is liable to be dismissed.
After having heard the argument of learned counsel for the parties and perusing the record, I find that the trial court while rejecting the application under section 311 Cr.P.C. of the revisionist by the order dated 22.9.2021 has recorded the specific finding that from the side of the accused-revisionist a lengthy cross- examination with PW-1 has been made on 4.8.2021. The other prosecution witnesses have been declared hostile, therefore it appears that the application under Section 311 Cr.P.C. has been moved with a view of get PW-1 resiled from his statement. The application has been rejected relying upon the judgment of Hon'ble the Apex Court in the case of Kuber Singh vs. State of U.P., 2005 Allahabad Criminal Decision 67, wherein the Apex Court has held that when opportunity to cross-examine the witnesses have been provided, then it would not be proper to recall them for further cross-examination.
The very use of the words in Section 311 Cr.P.C., such as 'any court', 'at any stage' or 'of any inquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of this Court in any way. However, very width requires corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection consistently with the provisions of the Code. It is settled that the provision of Section 311 Cr.P.C. cannot be invoked to recall witness to resile from his previous statement. The object underlying in Section 311 of Cr.P.C. is that there may not be failure of justice on account of either party in bringing valuable evidence on record of living ambiguity in the statement of witnesses examined from either side. Determinative factor is whether it is essential for the just decision of the case or not. It is also settled that the power under Section 311 Cr.P.C. could not be invoked by the Court to fill up lacunae unless the Court is satisfied that in the interest of justice, it is necessary to invoke to said extraordinary power.
The fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. It is not possible to lay down precise situations when such power can be exercised. The Legislature in its wisdom has left the power undefined. Thus, the scope of power under Section 311 Cr.P.C. has to be considered from case to case.
This Court in the case of Shyam Kumar and another Vs. State of U.P. and another reported in 2003 (47) A.C.C. 290 has held that the accused cannot have the witness recalled for re- examination as a matter of right and extraordinary provision cannot be used as an afterthought to fill the gaps.
Considering the materials brought on record and keeping the Principles laid down by the Hon'ble Supreme Court for exercise of power under section 311 Cr.P.C., this Court is of the view that observations and findings recorded by the trial Court in rejecting the application under Section 311 Cr.P.C. of the revisionist under the facts and circumstances of the case are fully sustainable. The trial Court has committed no illegality in rejecting the application of the revisionist. There appears no abuse of process of the Court also. There is no evidence on record to satisfy this Court that trial would be seriously prejudiced if the said witness is not recalled for re-examination.
In view of the above, the revision of the revisionist having no merit deserves to be dismissed. In the result, the criminal revision is dismissed.
Office is directed to communicate this order to the concerned trial Court.
Order Date :- 29.10.2021 Sumaira