The Allahabad High Court while allowing an application said that the witnesses under section 311 Cr.P.C can be recalled for the benefit of the accused and prosecution both.
A Single Bench of Justice Surendra Singh-I passed this order while hearing an application under section 482 filed by Chandrajit Singh @ Chehku and 6 others.
The 482 Cr.P.C application has been filed to set-aside the order dated 06.05.2023 (State Vs. Chandrajit @ Chahku and others) and all proceedings arising out of Case under section 147, 148, 149, 302, 395, 396, 504 I.P.C, Police Station- Basrehar, District- Etawah as a Special Case pending in the court of the Special Judge (Dacoity Affected Areas Act)/Additional Sessions Judge, Etawah and witnesses V.P Singh (Retired) S.I, R/o Phoolbagh Colony, Police Station- Nauchandi, Shahar and District- Meerut (Investigating Officer), Ghanshyam Ahirwar, Inspector (Investigating Officer C.B.C.I.D) and Dr S.K Agarwal, Medical Officer, Witness (Postmortem), may be recalled for their cross-examination.
It has been submitted by the counsel for the applicant that vide impugned order dated 06.05.2023, the trial court rejected the application 354 Ka dated 26.04.2023 u/s 311 Cr.P.C filed by the applicants/accused.
The applicants/accused have filed their application u/s 311 Cr.P.C. with the averment that in the beginning, charge was framed against the accused u/s 302 & 395 I.P.C and prosecution witnesses were examined after framing of the charge in aforesaid sections. The second charge was framed on 13.10.2010 u/s 396 I.P.C. After framing of the altered charge u/s 396 I.P.C, on 14.02.2023, Rajesh and Vijay Kumar were cross-examined.
It has been next submitted by the counsel for the applicant that after alteration of charge, the informant had filed Criminal Revision, Rajesh Kumar Singh Vs State of U.P & Others. Vide order dated 18.11.2010, the trial of the said criminal case was stayed by the High Court. The stay order was vacated in the year 2023. Thereafter, Rajesh Kumar and Vijay Kumar were examined. Thus, there was no act on the part of the accused in delaying the trial of the case. Thus, the defence did not contribute to the delay caused in the trial of the case.
It has also been submitted that to contradict these witnesses u/s 145 of the Indian Evidence Act, the re-examination of Dr S.K Agarwal, S.I V.P Singh and Investigating Officer of C.B.C.I.D, Ghanshyam Ahirwar is essential.
By not summoning the aforesaid witnesses, the trial court has caused great injustice to the accused and thus, the impugned order may be quashed and trial court be directed to summon the aforesaid witnesses.
Per contra, counsel for the opposite party no 2 and A.G.A for the State have opposed this application u/s 482 Cr.P.C on the ground that the applicants/accused have delayed the trial of the case by submitting various applications.
It has been next submitted that on the application of the defence, the charge framed u/s 302 & 395 I.P.C was converted to Section 396 I.P.C on 13.10.2010. Thereafter, on the application of defence vide order dated 20.10.2010, the court summoned Rajesh Kumar and Vijay Kumar for cross-examination.
It has also been submitted that Ghanshyam Ahirwar, Investigating Officer of C.B.C.I.D was not earlier summoned during trial. The defence has earlier filed an application for summoning Rajesh Kumar and Vijay Kumar for reexamination which was rejected by the trial court vide order dated 18.02.2008 and the case was fixed for argument.
It has further been submitted that Dr S.K Agarwal, who has prepared the postmortem report, was thoroughly examined by the defence on all points. Therefore, there was no justification in the prayer of defence for summoning the witnesses for cross-examination.
The Court noted that,
Section 311 Cr.P.C. reads as follows :-
Power to summon material witness, or examine person present – Any Court may, at any stage of any inquiry, trial or other proceeding, under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
This section is intended to be wide as the repeated use of the word “any” throughout its length clearly indicates. The section is in two parts, the first part gives a discretionary power but the second part is mandatory. The use of the word “may” in the first part and of the word “shall” in the second part firmly establishes this difference. The first part is permissive. The court may act in one of the three ways :
(a) summon any person as a witness,
(b) examine any person present in the court although not summoned, and
(c) recall or re-examine a witness already examined.
The second part i.e if the evidence of such a person appears to be essential to the just decision of the case, it is obligatory and compels the court to act in these 3 ways or any of them. There is no limitation on the power of the court arising from the stage to which the trial may have reached, provided the court is bonafide of the opinion that for the just decision of the case, the steps must be taken. The witnesses u/s 311 Cr.P.C can be recalled for the benefit of accused and prosecution both. The only thing is that the court has to form a bonafide opinion as to the necessity of an order u/s 311 CrPC.
The Court observed that,
From the perusal of the cross-examination of Rajesh Kumar and Vijay Kumar which was done after modification of the charge, it transpires that the defence has cross-examined the aforesaid witnesses on the modified charge. Thus, to rebut the evidence of these witnesses u/s 145 of the Indian Evidence Act, defence should be granted opportunity to cross-examine SI, V.P Singh regarding statements of Rajesh Kumar and Vijay Kumar u/s 161 CrPC.
Since the earlier framed charge u/s 302 and 395 I.P.C and the modified charge u/s 396 I.P.C both of them relates to murder of a person, therefore, there is no need to summon Dr S.K Agarwal, who had conducted the postmortem of the deceased Ashok Kumar Singh and Layak Singh.
Apart from this, the applicants have not given reasons why the cross-examination of Dr S.K. Agarwal is necessary after modification of the charge. Therefore, summoning Dr S.K Agarwal u/s 311 Cr.P.C is not necessary and prayer of the applicant in this regard cannot be accepted.
The Court further observed that,
As far as cross-examination of the Investigating Officer of C.B.C.I.D, Ghanshyam Ahirwar, is concerned, he was not even examined earlier after framing of charge u/s 302 and 395 IPC. In the case of Sukhwant Singh Vs State of Punjab, (1995) 3 SCC 367, the Apex Court has held that : “a witness cannot be tendered for cross-examination alone. If he was not examined by the chief, he cannot be subjected to cross examination.”
Thus, there is no ground to summon Dr S.K Agarwal and the Investigating Officer of C.B.C.I.D, Ghanshyam Ahirwar. Admittedly, Investigating Officer SI, V.P Singh was retired when he appeared earlier in 2006 in court for examination. Earlier, after modification of the charge, defence had filed an application for summoning of Rajesh Kumar and Vijay Kumar only. They had not prayed for summoning of Dr S.K Agarwal and Investigating Officer of C.B.C.I.D, Ghanshyam Ahirwar for cross-examination. Therefore, the court vide order dated 20.10.2010 had only summoned Rajesh Kumar and Vijay Kumar for cross-examination.
“Under the facts and circumstances of the case, the applicants/ defence shall be granted opportunity to examine SI, V.P Singh on payment of Rs 4,000 as costs which shall be paid to the witness on his arrival. The aforesaid witness shall be examined on the same date and defence shall not be granted any adjournment for cross-examination of SI, V.P Singh.
Under unavoidable circumstances and not due to the default of the defence, if the cross-examination of S.I V.P Singh is not concluded on the date of his arrival, it shall be concluded on the next date subject to payment of additional cost of Rs 4,000/- to the witness.
Subject to aforesaid conditions, the application u/s 482 Cr.P.C is allowed in part regarding summoning of Investigating Officer, SI, V.P Singh. However, the prayer regarding summoning of Dr S.K Agarwal and Investigating Officer of C.B.C.I.D, Ghanshyam Ahirwar, is rejected”, the Court ordered.