Monday, June 27, 2022

Allahabad High Court quashes trial court order

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The Allahabad High Court has quashed the order of the trial court while observing that a delay in the conclusion of the proceedings/trial should not be the reason for the rejection of an application under Section 311 CrPC.

A single bench of Justice Shekhar Kumar Yadav passed this order while hearing an application under Section 482 CrPC filed by Madhusudan Shukla.

This is a petition under Section 482 CrPC against the order dated 29.04.2022 by virtue of which the application of the applicant under Section 311 CrPC for summoning certain witnesses was rejected.

The facts of the case are that an FIR Case Crime under Section 364 IPC was lodged on 19.10.1996 by the informant against the applicant and three others alleging therein that on 18.10.1996 at about 7 pm elder brother of the informant along with one Sanjay Rai were going to Girdharganj to buy vegetables; at that time applicant and other named accused persons came in a jeep and took away the brother of the informant with them and when the informant reached his house, Sanjay Rai is said to have narrated all these facts to the informant. The informant further apprehends that his brother has been abducted with intention to kill him because of old enmity with one co-accused Prajapati Shukla @ Jhanney Shukla named in the FIR.

Investigation is said to have been carried out but for about one month none of the prosecution witnesses were examined and even the statement of informant was not recorded and as such the investigation was transferred to CBCID, Gorakhpur on 31.12.1996 and during course of process of investigation, the matter was again transferred to CBCID, Allahabad. During pendency of investigation, Investigating Officer, CBCID, Gorakhpur submitted charge sheet against Madhusudan Shukla (applicant) and Devi Sharan Yadav in the matter on 9.9.1997 under Sections 302, 364, 201/34 IPC and against accused Prajapati Shukla @ Jhannu Shukla and Girija Shanker Pandey on 4.11.1997 under Sections 364, 302, 201/34 IPC, whereupon cognizance was taken by the Magistrate.

However, later on, the second Investigating Officer H.N. Kanojiya, Inspector CBCID, Allahabad is said to have submitted the final report against the applicant and other co-accused persons. But the Trial Court has proceeded merely on the basis of the previous charge-sheet without taking any notice of the final report submitted by the second Investigating Officer.

During course of trial, after recording of the statement under Section 313 CrPC, an application (163 kha) under Section 311 CrPC dated 25.4.2022 was filed on behalf of the accused applicant to produce one Sanjay Rai as well as Second Investigating Officer H.N. Kanojiya, Inspector CBCID, Allahabad either as defence witness or court witness for the just and proper decision of the trial, which has been rejected by the trial court order dated 29.04.2022 noticing the fact that the Court, considering it to be one of the oldest matter, on earlier occasion had already directed the trial court to conclude the trial of the matter within six months. It is this order which is the subject matter of challenge before the Court.

Counsel for the applicant has contended that examination of the witnesses named in the application filed by the applicant under Section 311 CrPC is very essential for the just decision of the case. It is further submitted that the applicant has been falsely implicated in the case, which is based on last seen testimony and the applicant has no criminal history to his credit.

On the other hand, the counsel for the respondent and AGA for the State pleading the legality and validity of the impugned order contended that application under Section 311 CrPC moved by the applicant at the fag end of the trial was nothing, but a deliberate attempt to delay the conclusion of the trial. By way of aforesaid application, applicant wanted to re-open the entire case, which in law is not permissible. Even otherwise, application of the applicant under Section 311 CrPC was an attempt to fill up a lacuna.

The Court held,

The power to summon material witnesses under Section 311 CrPC which falls under Chapter XXIV containing the general provisions as to inquiries and trials has been held to confer a very wide power on the courts for summoning witnesses and accordingly the discretion conferred is to be exercised judiciously as wider the power, the greater is the necessity for application of judicial mind.

The power conferred has been held to be discretionary and is to enable the court to determine the truth after discovering all relevant facts and obtaining proper proof thereof to arrive at a just decision in the case. The power conferred under Section 311 CrPC is to be invoked by the court to meet the ends of justice, for strong and valid reasons and it is to be exercised with great caution and circumspection. The determinative factor in this regard should be whether the summoning or recalling of the witness is in fact, essential to the just decision of the case keeping in view that fair trial – which entails the interests of the accused, the victim and of the society – is the main object of the criminal procedure and the court is to ensure that such fairness is not hampered or threatened in any manner.

The Court noted,

In the case, record (application 163 Kha) reveals that the additional witness, namely, Sanjay Rai, who claims himself to be an eye witness of the incident in his statement under Section 161 CrPC, sought to be summoned by the applicant by way of additional evidence, was cited in the list of witness by both the Investigating Officers at the time of filing of the charge-sheet and while submitting final report but he was not produced by the prosecution side in the trial proceedings. Whereas the Second witness sought to be examined is the second Investigating Officer, who submitted the final report after thorough investigation and, therefore, their examination in the trial proceedings are necessary for arriving at the just decision of the case, when allegedly the case is based upon circumstantial evidence.

The observation of the trial court in the impugned order that the applicant, by moving the application under Section 311 CrPC belatedly wants to derail the trial, also to fill up a lacuna and to delay the trial proceedings and more particularly it has also noted in the impugned order that Sessions Trial is pending since 2013, and evidence under Section 313 CrPC was recorded on 12.4.2022 and the case was fixed on 13.4.2022 for defence evidence but on that date it has been endorsed by counsel for the applicant that applicant does not want to give any defence evidence and in view thereof the application under Section 311 CrPC has been rejected but the court below has not returned any finding as to why the evidence of witnesses sought to be summoned is not necessary.

“Keeping in view the various pronouncements, the observations noted by the Trial Court in the impugned order are not tenable when the paramount consideration is “just decision of a case” and also keeping in view the decision of Apex Court in Manju Devi (supra) wherein it has specifically been held that delay in conclusion of the proceedings should not be the reason for rejection of an application under Section 311 CrPC, the order impugned is liable to be quashed.

Moreover, the trial Court appears to have adopted a hyper technical view in rejecting the application, however, what it appears to have ignored is the purpose for which the salutary provisions of Section 311 CrPC has been incorporated. It has failed to adhere to the well known adage that every trial is a voyage in which the quest for truth is the goal. The trial court can summon any witness even if evidence of both sides is closed. What is required to be demonstrated is, evidence of such a witness is essential to the just decision of the case,” the Court observed while allowing the application under Section 482 CrPC.

Therefore, the order of the trial Court dated 29.04.2022 is hereby quashed.

“The Court below is directed to fix a short date for the examination of the witnesses sought to be summoned by the applicant and on that date if the applicant fails to examine the witnesses, court below shall proceed in the matter without giving any further opportunity to the applicant to lead his evidence. Since the records indicate that the matter is the oldest one, the trial Court is directed to take up the matter on day today basis and dispose of the trial as early as possible but not later than six months from the date of receipt of a copy of the order,” the Court ordered.

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