Court No. - 70
Case :- APPLICATION U/S 482 No. - 7529 of 2019 Applicant :- Sudhir Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajesh Kumar Yadav,Jayant Kumar Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant and learned Additional Government Advocate for the State/opposite party no.1 and perused the record with the assistance of learned counsel for the parties.
This application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the impugned order dated 06.10.2018 passed by Additional Session Judge/Fast Track Court, Ghaziabad in Session Trial No.1740 of 2013 (State vs. Sudhir), under Sections 363, 366, 376 I.P.C., Police Station Loni, district Ghaziabad, whereby the application dated 29.06.2018 of the accused/applicant to recall the victim/ prosecutrix (P.W.3) has been rejected by the trial court.
From the material evidence on record, I find that in this case charge against the accused was framed on 19.02.2014 and the examination-in-chief of victim Menakshi/P.W.3 was recorded on 08.07.2015, thereafter lengthy cross examination of four pages has already been done from the side of the accused- applicant. After about four years of the statement of the prosecutrix/P.W.-3, further four prosecution witnesses have also been examined from the side of the prosecution and statement under section 313 Cr.P.C. of the accused was recorded on 28.02.2018. The case was further pending since 28.02.2018 to 13.07.2018 for defence evidence. At this stage, on 13.07.2018, the accused/applicant engaged a new counsel, thereafter an application dated 29.06.2018 was moved to recall P.W.-3.
I find that trial court while rejecting the application dated 29.06.2018 of the applicant has recorded specific finding that a detail cross examination has already been made from the side of the defence. The application under section 311 Cr.P.C. has been moved only with the object to delay the trial.
The scope and object of Section 311 Cr.P.C. has been well settled by the Apex Court in the following cases:-
The Apex Court in the case of Rajaram Prasad Yadav Vs. State of Bihar and another reported in 2013 (14) SCC 461 has considered the nature and scope of Section 311 Cr.P.C. with regard to recall and re-examination of witnesses, in detail and settled the principles, which have to be borne in mind while considering the application under Section 311 Cr.P.C. The relevant extract of the said judgement are reproduced hereinunder:
"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:
17.1. 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 is noted by the Court for a just decision of a case?
17.2. 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.
17.3. 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.
17.4. 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.
17.5. 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.
17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.
17.7. 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.
17.8. 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.
17.9. 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.
17.10. Exigency of the situation, fair play and good sense should be the safeguard, 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.
17.11. 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.
17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
17.13. 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.
17.14. 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. "
Further the Apex Court in the case of A.G. Vs. Shiv Kumar Yadav and another reported in 2015 (91) ACC 640 following the principles laid down by the Apex court in the case of Ram Prasad Yadav (supra) has also considered the issue that the presumption that an accused in custody will not delay the trial is not well founded and could not be a valid consideration for retrial or recall of witnesses. 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. In the said case, Apex Court has also observed that power of judicial superintendence under Article 227 of the Constitution of India and under Section 482 Cr.P.C. has to be exercised springily when there is a patent error or gross injustice.
Considering the materials brought on record and keeping the Principles laid down by the Hon'ble Supreme Court as mentioned above, this Court is of the view that presumption, observations and findings recorded by the trial Court in rejecting the application under Section 311 Cr.P.C. of the applicant under the facts and circumstances of the case are fully sustainable. The trial Court has committed no illegality in rejecting the application of the applicant. 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 application under Section 482 Cr.P.C. of the applicant having no merit deserves to be dismissed. In the result, the application is dismissed.
Office is directed to communicate this order to the concerned trial Court.
Order Date :- 28.2.2019/SKD