The Allahabad High Court has said in a significant judgment that the trial court can call anyone to testify under Section 311 of the Code of Criminal Procedure to arrive at a right decision in a criminal case, even though his name hasn’t come up during investigation or in charge-sheet.
The single-judge bench of Justice Sameer Jain heard an application filed under Section 482 by Happy alias Amit.
The application has been moved by the applicant against the order dated 22.7.2022 passed by Additional District & Sessions Judge, Special Judge, SC/ST Act, Baghpat, arising out of case under sections 302, 504, 323 IPC, PS- Khekhra, District Baghpat by which application moved by opposite party no 2 under section 311 CrPC was allowed and one witness Nishant was summoned.
Counsel for the applicant submitted that applicant is the accused in the matter and during the pendency of the trial, opposite party no 2 moved an application under Section 311 CrPC to summon her brother Nishant as witness on the ground that her brother Nishant was one of the witness and trial court on 22.7.2022 allowed the application moved by opposite party no 2 and summoned Nishant under section 311 CrPC.
Counsel for the applicant further submitted that the order dated 22.7.2022 is illegal as during investigation, name of the witness Nishant could not be disclosed either in the statement of the opposite party no 2 or in the statement of any other witnesses.
He also submitted that even in the charge sheet, his name has not been disclosed but in spite of this fact, court below merely on the basis of statement of the opposite party no 2 recorded during trial and on the basis of one alleged affidavit filed by her before Superintendent of Police concerned which is not even part of the case diary, summoned the witness Nishant and therefore, committed gross illegality of law.
Counsel for the applicant vehemently submitted that even opposite party no 2 in her second statement recorded under Section 161 CrPC did not disclose the fact that her brother Nishant was also one of the eye witness, therefore, at such later stage, during trial, introduction of Nishant as a witness will cause great prejudice to the applicant who is accused in the matter but this fact could not be considered by the court below and application moved by the opposite party no 2 under Section 311 CrPC was allowed and her brother Nishant was summoned as a witness, therefore, order dated 22.7.2022 is illegal.
Counsel for the applicant said that the opposite party no 2 filed a photostat copy of the affidavit before the trial court which is not admissible in the eye of law, therefore, after considering such documents, the order to summon a witness under section 311 CrPC is bad.
Per contra, Counsel for the opposite party no 2 and AGA submitted that for summoning of a witness under section 311 CrPC, it is not the condition precedent that his name must be disclosed during investigation. They submitted that it is sufficient if during trial, his name disclosed in the statement of any witness or on the basis of some document, it appears that his testimony is necessary for just decision of the case and in case at hand, in the testimony of the opposite party no 2 who is informant of the case, the name of witness Nishant who is her brother has been disclosed and further immediately after ten days of the alleged incident opposite party no 2 filed an affidavit before Superintendent of Police concerned that her brother Nishant was also one of the eye witnesses but in spite of that, her affidavit could not become part of the case diary and during investigation, Investigating Officer did not include the same along with other materials of the case diary but on that ground, it cannot be said that only for the first time opposite party no 2 during her testimony recorded before the trial court disclosed the name of brother Nishant.
Both the counsels further submitted that as Nishant is also one of the eye witnesses, therefore, his testimony is necessary to arrive at the just decision of the case and applicant being accused of the case is having opportunity to cross-examine him and no prejudice will cause to him, therefore, there is no illegality in the order dated 22.7.2022.
Counsel for the opposite party no 2 placed reliance in the judgement of the Apex Court in the case of Varsha Garg Vs State of Madhya Pradesh reported in 2022 SCC OnLine SC 986 and submitted that in more or less similar circumstances, application moved under section 311 CrPC was dismissed by the trial court on the ground that during investigation neither the name of the witness could be disclosed nor the alleged document was before the Investigating Officer during investigation and High Court of Madhya Pradesh also endorsed the view of the trial court but when the matter travelled up to the Apex Court then the Apex Court set aside both the orders passed by the trial court and the order passed by the High Court of Madhya Pradesh and observed that for summoning under section 311 CrPC, the only condition precedents is that the witness summoned should be necessary for just decision of the case and it is immaterial that his name could not be disclosed during investigation, therefore, opposite party no 2 and learned AGA pressed that the instant application is liable to be dismissed.
The Court observed that the applicant is the accused in the matter and is facing criminal trial under sections 302, 504, 323 IPC. Opposite party no 2 is the informant of the case and during her testimony, it reflects that her brother Nishant was also one of the eye witnesses and affidavit has been filed by her during the investigation before the Superintendent of Police concerned to the effect that her brother is also one of the eye witness but unfortunately, affidavit filed by her could not become part of the case diary, reason best known to the investigating agency. Be that it may, it hardly matters as opposite party no 2 being a complainant of the case is having no control over the investigation of the matter but this fact shows that she within ten days from the date of incident filed an affidavit in this regard to the Superintendent of Police concerned stating that her brother Nishant was an eyewitness.
The Court said,
The argument advanced by the counsel for the applicant is that on the basis of photostat copy of a document, no order under section 311 CrPC could be passed but this argument is not acceptable as admittedly opposite party no 2 filed an original copy of her affidavit before the S.P concerned therefore, before trial court she could never filed original copy of the same.
Further, Section 311 CrPC dealt with summoning or recall of the witness and the first part of it is although discretionary but second part is mandatory which states that it is the duty of the court below to summon or recall every witness, if the testimony of such witness is necessary to arrive at the just decision of the case. In case at hand, as per the testimony of the opposite party no 2, the informant of the case i.e witness Nishant, the brother of opposite party no 2 is one of the eye witnesses, therefore, it cannot be said that his testimony was not necessary for just decision of the case. He being an eye witness can throw some light on the material facts of the case. Further, from summoning of the witness Nishant no prejudice could be caused to the applicant as the applicant is having ample opportunity to cross examine him.
“Further, the other argument advanced by the counsel for the applicant that as the name of witness Nishant could not be disclosed during investigation, therefore, he is almost stranger to the case and cannot be summoned straightway under section 311 CrPC merely on the basis of testimony of the opposite party no 2, the complainant of the case but in view of the judgement of the Apex Court in case of Varsha Garg (supra) the argument advanced by the counsel for the applicant cannot be accepted as Apex Court in above case specifically stated that only requirement for summoning of the witnesses under section 311 CrPC is his testimony should be necessary for just decision of the case and it hardly matters that his name could not be revealed during investigation.
Therefore, from the above discussion, there is no illegality in the order dated 22.7.2022 passed by the trial court,” the Court further observed while dismissing the application.