The Allahabad High Court while allowing an application said that it is well settled that there cannot be any delay in filing the application under Section 311 CrPC as the Section itself contemplates that it can be filed at any stage of the proceedings. It is thus clear that the delay in filing the application cannot be taken as a ground for rejecting the same.
A Single Bench of Justice Rajeev Misra passed this order while hearing an application under section 482 filed by Yograj Singh.
These applications under Section 482 Cr.P.C have been filed challenging the order dated 03.04.2023 passed by Additional Sessions Judge, Mujaffarnagar in Sessions Trial in case under Section 302 IPC, Police Station Bhaurakalan, District-Muzaffarnagar, arising out of Case under Section 302 IPC, Police Station-Bhaurakalan, District Muzaffarnagar, whereby the application dated 07.02.2023 under Section 311 Cr.P.C filed by the first informant/ applicantYograj Singh with the permission of the prosecution has been rejected.
The Court noted that in respect of an incident, which is alleged to have occurred on 06.09.2003, a delayed FIR dated 07.09.2003 was lodged by first informant/applicant-Yograj Singh and was registered as Case under Section 302 IPC, Police Station-Bhaura Kalan, District-Muzaffarnagar. In the aforesaid FIR, 3 persons namely – (1) Naresh, (2) Parveen and (3) Bittu were nominated as named accused.
After the FIR was lodged, the Investigating Officer proceeded with statutory investigation of the concerned case crime number in terms of Chapter-XII CrPC.
On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that offence complained of is duly established. Accordingly, he submitted the police report dated 01.05.2005 in terms of Section 173(2) CrPC (Charge Sheet).
After submission of the aforementioned police report (charge sheet), cognizance was taken upon the same by the concerned Magistrate. However, as offence complained of is exclusively triable by court of Sessions, concerned Magistrate, accordingly, committed the case to the Court of Sessions.
Resultantly, Sessions Trial (State Vs Naresh Tekait) under Section 302 IPC, Police Station Bhaurakalan, District Muzaffarnagar came to be registered.
Charges were framed against the charge sheet accused namely Naresh Tekait, vide framing of charge order dated 11.06.2007, who denied the same. Accused pleaded innocence and demanded trial. Resultantly, the trial procedure commenced.
After the trial had proceeded substantially and the statement of the accused under Section 313 Cr. P. C was recorded on 19.12.2022, a transfer application was filed by applicant Yograj Singh directly before the Supreme Court seeking transfer of above mentioned sessions trial to Delhi on account of prejudice with the Court as well as the Presiding Officer.
However, prior to the order dated 10.02.2023 referred to above, applicant-Yograj Singh filed an application dated 07.02.2023, under Section 311 CrPC (Paper No 338 Kha) in aforementioned Sessions Trial praying therein that S.S Chaudhary, the then SHO, P.S Bhaurakalan be summoned along with the records of Case under Sections 147, 148, 186, 189, 353 IPC and 7 Criminal Law Amendment Act, PS Bhaurakalan, District Muzaffarnagar.
Subsequently, another application dated 21.03.2023 was filed by applicant-Yograj Singh praying therein that S.S Chaudhary, the then SHO, P.S Bhaura Kalan and the Investigating Officer Gulab Chand Arya be summoned.
Aforesaid application dated 07.02.2023 filed by the applicant Yograj Singh was opposed by the accused-opposite party 2 Naresh Tikait.
Ultimately the court below vide order dated 03.04.2023 dismissed the application (Paper No 338 Kha) filed by applicant-Yograj Singh.
Thus feeling aggrieved by the order dated 03.04.2023 referred to above, first informant-Yograj Singh and the State of U.P have filed aforementioned applications under Section 482 Cr.P.C before the Court.
Anoop Trivedi, the Senior Counsel appearing for applicant-Yograj Singh submitted that the order impugned in the application is manifestly illegal and without jurisdiction.
According to the Senior Counsel for applicant, there cannot be any delay in filing an application under Section 311 CrPC, as according to the provisions contained in Section 311 CrPC, the application for recall of a witness can be filed at any stage of the proceedings.
Manuraj Singh, the A.G.A has supported the submissions urged by the Senior Counsel for applicant-Yograj Singh. He also contends that in the facts and circumstances of the case, the order impugned is liable to be set aside.
The Court found that the issue which arises for determination in the application is;- what are the parameters for exercising jurisdiction under Section 311 CrPC. As a corollary to the above, the court will also have to consider whether the order impugned in the applications is in conformity with the said parameters or not.
The Court further found that it is true that initially a transfer application was filed by applicant-Yograj Singh before the Supreme Court seeking transfer of above mentioned Sessions Trial from Muzaffarnagar to Delhi on the grounds of prejudice with the Court as well as the Presiding Officer.
The Court also found that during the pendency of the transfer application dated 07.02.2023, an application was filed by applicant-Yograj Singh in terms of Section 311 CrPC. After the dismissal of the transfer application by the Supreme Court, vide order dated 10.02.2023, another application under Section 311 Cr.P.C was filed by applicant-Yograj Singh on 21.03.2023. The genesis of the applications is explicit from the applications as well as the material on record of the Sessions Trial inasmuch as, the document i.e the personal diary of the deceased had been recovered by the Investigating Officer and a recovery memo/seizure memo of the same was prepared. However, due to inadvertence, the said document could not be proved before court below at the stage of the trial under Section 321 Cr.P.C i.e prosecution evidence stage. It is subsequent to above, that the applications under Section 311 Cr.P.C referred to above were filed.
The Court said that it is well settled that there cannot be any delay in filing the application under Section 311 Cr.P.C as the Section itself contemplates that an application under Section 311 Cr.P.C can be filed at any stage of the proceedings. It is thus clear that the delay in filing the application cannot be taken as a ground for rejecting the same.
Apart from above, the Court observed that in case, the above application is allowed, no prejudice shall be caused to 16 the accused as the said document which has already been recovered/seized will not lead to a departure from the tone and tenor of the evidence of the prosecution witnesses of fact. The document sought to be proved and thereafter admitted in evidence shall be helpful for the court to discover the truth as it shall establish enmity and motive against the accused. Therefore, the application under Section 311 Cr.P.C filed by the applicant-Yograj Singh is squarely covered under paragraph 23 (h) and 23(n) of the judgment in Rajaram Prasad Yadav (Supra).
The Court further observed that the court below has only considered the content of the application but has not delved into the question that the documents sought to be proved and thereafter admitted in evidence is already on the record of the Sessions Trial as the same has already been recovered and seized by the Investigating Officer during the course of investigation, no prejudice is going to be caused to the defence as the said documents would have been proved and admitted in evidence in normal course but for the inadvertent omission on the part of the prosecution, there will be no change in the nature of the evidence already adduced by the prosecution nor there will be a departure from the prosecution case as unfolded in the testimonies of the prosecution witnesses of fact and coupled with the fact that court below has not recorded any finding regarding the relevance of the same for unearthing the truth. In view of the discussions made above, the applications succeed and are therefore liable to be allowed.
“The order dated 03.04.2023 passed by Additional Sessions Judge, Mujaffarnagar in Sessions Trial (State Vs Naresh Tikait) under Section 302 IPC, Police Station-Bhaura Kalan, District Muzaffarnagar is hereby quashed.
Considering the fact that the trial is of the year, 2004 and there is a direction by the Supreme Court order dated 10.02.2023 passed in Transfer Petition (Criminal) to decide the above mentioned Sessions Trial within a period of 6 months from the date of the order i.e 10.02.2023, the application under Section 311 Cr.P.C filed by applicant-Yograj Singh (paper no 338 Kha) shall stand allowed. The court below is directed to undertake the necessary exercise regarding the said application forthwith and complete the consequential proceedings regarding the same on priority basis”, the Court ordered.