BALVEER SINGH v. STATE OF UTTARAKHAND
Court: High Court of Uttarakhand
Bench: HON'BLE MR. JUSTICE MANOJ KUMAR TIWARI
Judgment date:
Case summary
High Court of Uttarakhand judgment dated 2024-09-13. BALVEER SINGH v. STATE OF UTTARAKHAND. Read the judgment and case details on LawSphereX.
Judgment text
2024:UHC:6689 HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 639 of 2024 13 September, 2024 1: Balveer Singh 2: Vikram …Revisionist Versus 1: State Of Uttarakhand 2: Shri Ganga Ram 3: Shrimati Bhagwati 4: Shakti Singh …Respondent ---------------------------------------------------------------------- Presence:- Ms. Chetna Latwal, Advocate for the Applicant. Mr. Shaurabh Pande, learned Brief Holder for the State. ---------------------------------------------------------------------- JUD GM EN T 1. This crim inal revision has been filed under Sect ion 442 of Bhart iya Nagrik Suraksha Sanhit a, 2023 st challenging t he order dat ed 30. 07. 2024 passed by 1 Addit ional Sessions Judge, Kashipur, Dist rict Udham Singh Nagar in Sessions Trial No. 184 of 2022. By t he said order, applicat ion filed by revisionist s for recall of prosecut ion wit nesses, under Sect ion 311 of CrP. C. was rej ect ed. 2. FI R No. 0287 of 2022 was regist ered on 17. 06.
2022 in Police St at ion Baj pur, Dist rict Udham Singh Nagar, under Sect ion 302 I PC, in which bot h revisionist s were also nam ed as accused. Upon invest igat ion, I nvest igat ing Officer filed a charge- sheet st and revisionist s are facing t rial in t he court of 1 Addit ional Sessions Judge, Kashipur ( Sessions Trial No. 184 of 2022) . I n t he said t rial, st at em ent of P. W. 1 was 2024:UHC:6689 recorded in t he m ont h of Decem ber, 2022, while St at em ent of P. W. - 2 and P. W. 3 were recorded in February, 2023. True copy of st at em ent s of t hese t hree wit nesses are on record as Annexure 3 t o t he crim inal revision, perusal whereof indicat es t hat t he Defence Counsel had ext ensively cross- exam ined t hese prosecut ion wit nesses. 3. Aft er m ore t han a year of recording st at em ent of P. W. 1, P. W. 2 & P. W. 3, an applicat ion, under Sect ion 311 of Cr. P. C. was m oved on 21. 05.
2024 on behalf of revisionist s for recall of t hese prosecut ion wit nesses, on t he ground t hat cert ain relevant st quest ions could not asked from t hem . Learned 1 Addit ional Sessions Judge rej ect ed t he applicat ion vide order dat ed 30. 07. 2024 by holding t hat prayer for recall of wit nesses is not j ust ified. Thus, feeling aggrieved, revisionist s have approached t his Court . 4. Heard Ms. Chet na Lat wal, learned counsel for t he revisionist s, Mr. Shaurabh Pande, learned Brief Holder for t he St at e of Ut t arakhand and perused t he record. 5. Learned t rial court has given valid reasons for rej ect ing t he prayer for recall of wit nesses m ade by revisionist s. I t is held t hat all t he t hree prosecut ion wit nesses were t horoughly cross- exam ined by Defence Counsel m ore t han a year ago and t he ground t aken for seeking recall of wit nesses is not sufficient . 6. Sect ion 311 of Cr. P. C. is ext ract ed below for 2024:UHC:6689 ready reference: - “ 3 1 1 .
Po w e r t o su m m o n m a t e r i a l w i t n e ss, o r e x a m i n e p e r so n p r e se n t . - Any Court m ay, at any st age of any inquiry, t rial or ot her proceeding under t his Code, sum m on any person in at t endance, t hough not sum m oned as a wit ness, or recall and re- exam ine any person already exam ined; and t he Court shall sum m on and exam ine or recall and re- exam ine any such person if his evidence appears t o it t o be essent ial t o t he j ust decision of t he case. ” 7. A plain reading of Sect ion 311 of Cr. P. C. reveals t hat it enables a Court t o sum m on any person as wit ness or exam ine any person in at t endance t hough not sum m oned, or recall or re- exam ine any person, who has been exam ined; if his evidence appears t o t he Court t o be essent ial t o t he j ust decision of t he case. Thus, Sect ion 311 of Cr. P. C.
does not creat e any right for recall of wit ness in favour of any part y t o t he proceeding and t he said Sect ion em powers a Court t o recall and re- exam ine a wit ness t o ensure t hat t here m ay not be failure of j ust ice on account of m ist ake of eit her part y in bringing t he valuable evidence on record or leaving am biguit y in t he st at em ent s of t he wit nesses exam ined from eit her side. 8. I n t he case of Rat anlal vs. Prahlad Jat , report ed in ( 2017) 9 SCC 340, Hon’ble Suprem e Court , while discussing t he scope of Sect ion 311 Cr. P. C. , has held as under: - “ 1 7 .
I n order t o enable t he court t o find out t he t rut h and render a j ust decision, t he salut ary provisions of Sect ion 311 are enact ed whereunder any court by exercising it s discret ionary aut horit y at any st age of inquiry, t rial or ot her proceeding can sum m on any person as wit ness or exam ine any person in at t endance t hough not sum m oned as a wit ness or recall or re- exam ine any person already exam ined who are expect ed t o be able t o t hrow light upon t he m at t er in disput e. The obj ect of t he provision 2024:UHC:6689 as a whole is t o do j ust ice not only from t he point of view of t he accused and t he prosecut ion but also from t he point of view of an orderly societ y. This power is t o be exercised only for st rong and valid reasons and it should be exercised wit h caut ion and circum spect ion. Recall is not a m at t er of course and t he discret ion given t o t he court has t o be exercised j udicially t o prevent failure of j ust ice.
Therefore, t he reasons for exercising t his power should be spelt out in t he order. 1 8 . I n Vij ay Kum ar v. St at e of U. P. [ Vij ay Kum ar v. St at e of U. P. , ( 2011) 8 SCC 136 : ( 2011) 3 SCC ( Cri) 371 : ( 2012) 1 SCC ( L&S) 240] , t his Court while explaining scope and am bit of Sect ion 311 has held as under: ( SCC p. 141, para 17) “ 17. Though Sect ion 311 confers vast discret ion upon t he court and is expressed in t he widest possible t erm s, t he discret ionary power under t he said sect ion can be invoked only for t he ends of j ust ice. Discret ionary power should be exercised consist ent ly wit h t he provisions of [ CrPC] and t he principles of crim inal law. The discret ionary power conferred under Sect ion 311 has t o be exercised j udicially for reasons st at ed by t he court and not arbit rarily or capriciously. ” 1 9 . I n Zahira Habibullah Sheikh ( 5) v. St at e of Guj arat [ Zahira Habibullah Sheikh ( 5) v.
St at e of Guj arat , ( 2006) 3 SCC 374 : ( 2006) 2 SCC ( Cri) 8] , t his Court has considered t he concept underlying under Sect ion 311 as under: ( SCC p. 392, para 27) “ 27. The obj ect underlying Sect ion 311 of t he Code is t hat t here m ay not be failure of j ust ice on account of m ist ake of eit her part y in bringing t he valuable evidence on record or leaving am biguit y in t he st at em ent s of t he wit nesses exam ined from eit her side. The det erm inat ive fact or is whet her it is essent ial t o t he j ust decision of t he case. The sect ion is not lim it ed only for t he benefit of t he accused, and it will not be an im proper exercise of t he powers of t he court t o sum m on a w it ness under t he sect ion m erely because t he evidence support s t he case of t he prosecut ion and not t hat of t he accused.
The sect ion is a general sect ion which applies t o all proceedings, enquiries and t rials under t he Code and em powers t he Magist rat e t o issue sum m ons t o any wit ness at any st age of such proceedings, t rial or enquiry. I n Sect ion 311 t he significant expression t hat occurs is “ at any st age of any inquiry or t rial or ot her pr oceeding under t his Code”. I t is, however, t o be borne in m ind t hat whereas t he sect ion confers a very wide power on t he court on sum m oning wit nesses, t he discret ion conferred is t o be exercised j udiciously, as t he wider t he power t he great er is t he necessit y for applicat ion of j udicial m ind. ” 2 0 . I n St at e ( NCT of Delhi) v. Shiv Kum ar 2024:UHC:6689 Yadav [ St at e ( NCT of Delhi) v. Shiv Kum ar Yadav, ( 2016) 2 SCC 402 : ( 2016) 1 SCC ( Cri) 510] , it was held t hus: ( SCC pp.
404g- 405a) “ … Cert ainly, recall could be perm it t ed if essent ial for t he j ust decision, but not on such considerat ion as has been adopt ed in t he present case. Mere observat ion t hat recall was necessary “ for ensuring fair t rial” is not enough unless t her e are t angible reasons t o show how t he fair t rial suffered wit hout recall. Recall is not a m at t er of course and t he discret ion given t o t he court has t o be exercised j udiciously t o prevent failure of j ust ice and not ar bit rarily. While t he part y is even perm it t ed t o correct it s bona fide error and m ay be ent it led t o furt her opport unit y even when such opport unit y m ay be sought wit hout any fault on t he part of t he opposit e part y, plea for recall for advancing j ust ice has t o be bona fide and has t o be balanced carefully w it h t he ot her relevant considerat ions including uncalled for hardship t o t he wit nesses and uncalled for delay in t he t rial.
Having regard t o t hese considerat ions, t here is no ground t o j ust ify t he recall of wit nesses already exam ined. ” 2 1 . The delay in filing t he applicat ion is one of t he im port ant fact ors which has t o be explained in t he applicat ion. I n Um ar Moham m ad v. St at e of Raj ast han [ Um ar Moham m ad v. St at e of Raj ast han, ( 2007) 14 SCC 711 : ( 2009) 3 SCC ( Cri) 244] , t his Court has held as under: ( SCC p. 719, para 38) “ 38. Before part ing, however, we m ay not ice t hat a cont ent ion has been raised by t he learned counsel for t he appellant t hat PW 1 who was exam ined in Court on 5- 7- 1994 purport ed t o have filed an applicat ion on 1- 5- 1995 st at ing t hat five accused persons nam ed t herein were innocent . An applicat ion filed by him purport ed t o be under Sect ion 311 of t he Code of Crim inal Procedure was rej ect ed by t he learned t rial Judge by order dat ed 13- 5- 1995.
A revision pet it ion was filed t hereagainst and t he High Court also rej ect ed t he said cont ent ion. I t is not a case where st rict o sensu t he pr ovisions of Sect ion 311 of t he Code of Crim inal Procedure could have been invoked. The very fact t hat such an applicat ion was got filed by PW 1 nine m ont hs aft er his deposit ion is it self a point er t o t he fact t hat he had been won over. I t is absurd t o cont end t hat he, aft er a period of four years and t hat t oo aft er his exam inat ion- in- chief and cross-exam inat ion was com plet e, would file an applicat ion on his own will and volit ion. The said applicat ion was, t herefore, right ly dism issed. ” ” 9. Sim ilarly in t he case of Manj u Devi vs. St at e of Raj ast han, report ed in ( 2019) 6 SCC 203, Hon’ble Suprem e Court em phasized t hat a discret ionary power 2024:UHC:6689 like Sect ion 311 Cr. P. C.
is t o enable t he Court t o keep t he record st raight and t o clear any am biguity regarding t he evidence, whilst also ensuring t hat no prej udice is caused t o anyone. 10. I n t he case of Swapan Kum ar Chat t erj ee vs. Cent ral Bureau of I nvest igat ion, report ed in ( 2019) 14 SCC 328, Hon’ble Suprem e Court has sum m arized t he legal posit ion t hus: - “ 1 0 . The first part of t his sect ion which is perm issive gives purely discret ionary aut horit y t o t he crim inal court and enables it at any st age of inquiry, t rial or ot her proceedings under t he Code t o act in one of t he t hree ways, nam ely, ( i) t o sum m on any person as a wit ness; or ( ii) t o exam ine any person in at t endance, t hough not sum m oned as a wit ness; or ( iii) t o recall and re- exam ine any person already exam ined.
The second part , which is m andat ory, im poses an obligat ion on t he court ( i) t o sum m on and exam ine or ( ii) t o recall and re- exam ine any such person if his evidence appears t o be essent ial t o t he j ust decision of t he case. 1 1 . I t is well set t led t hat t he power conferred under Sect ion 311 should be invoked by t he court only t o m eet t he ends of j ust ice. The power is t o be exercised only for st rong and valid reasons and it should be exercised wit h great caut ion and circum spect ion. The court has vide power under t his sect ion t o even recall wit nesses for re- exam inat ion or furt her exam inat ion, necessary in t he int erest of j ust ice, but t he sam e has t o be exercised aft er t aking int o considerat ion t he fact s and circum st ances of each case. The power under t his provision shall not be exercised if t he court is of t he view t hat t he applicat ion has been filed as an abuse of t he process of law. 1 2 .
Where t he prosecut ion evidence has been closed long back and t he reasons for non- exam inat ion of t he wit ness earlier are not sat isfact ory, t he sum m oning of t he wit ness at belat ed st age would cause great prej udice t o t he accused and should not be allowed. Sim ilarly, t he court should not encourage t he filing of successive applicat ions for recall of a wit ness under t his provision. ” 11. I n t he case of Harendra Rai vs. St at e of Bihar, report ed in 2023 SCC OnLine SC 1023, Hon’ble Suprem e Court expressed t he opinion t hat Sect ion 311 Cr. P. C. should be invoked when “ it is essent ial for t he 2024:UHC:6689 j ust decision of t he case”. 12. Sim ilar view has been expressed by Hon’ble Suprem e Court in a recent j udgm ent in t he case of Sat bir Singh vs St at e of Haryana & ot hers, report ed in 2023 SCC OnLine SC 1086. 13.
I n t he present case, all t he t hree prosecut ion wit nesses, who are sought t o be recalled, were subj ect ed t o det ailed cross- exam inat ion by Defence Counsel. The applicat ion for recall has been filed aft er nearly 1½ year. Learned t rial court was j ust ified in rej ect ing t he applicat ion for recall. 14. This Court concurs wit h t he reasoning given by learned t rail court for rej ect ing t he applicat ion filed by t he revisionist s. Thus, t here is no scope of int erference wit h t he im pugned order. 15. Accordingly, t he crim inal revision fails and is dism issed. ( M A N OJ KUM A R TI W A RI , J. ) Aswal Digitally signed by NITI RAJ SINGH ASWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT NITI RAJ SINGH OF UTTARAKHAND,2. 5. 4. 20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08 b08d1369512ea30f3, postalCode=263001, st=UTTARAKHAND, serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF ASWAL 4F4610C1FE58A58531726FBB0, cn=NITI RAJ SINGH ASWALDate: 2024. 09.
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