# Amarjeet @ Kaluwa (In Jail) v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2020) 12 ILRA 168
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-06-11
- **Case number:** Application U/S 482 No. 8463 of 2020
- **Bench:** Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amarjeet-kaluwa-in-jail-v-state-of-u-p-anr-opp-parties-45453
- **Pages:** 7

## Headnote

Criminal Law -Code of Criminal Procedure,
1973- Section 311- In order to enable the
12 All. Amarjeet @ Kaluwa Vs. State of U.P. & Anr.
169
Court to find out the truth and render a
just decision, the salutary provisions of
Section 311 are enacted whereunder any
court by exercising its discretionary power
at any stage of inquiry, trial or other
proceeding can summon any person in
attendance though not summoned as a
witness or recall or re-examine any person
already examined who are expected to be
able to throw light upon the matter in
dispute. This power is to exercised with
caution and circumspection. Recall is not a
matter of course and the discretion has
been given to the court has to be
exercised judicially to prevent failure of
justice.

Any Court may summon any witness at any
stage of any inquiry , trial or other proceeding
as a witness for the just decision of the case but
the said power has to be exercised with caution
and circumspection.

Criminal Law- Code of Criminal Procedure,
1973- Section 311- No requirement under
the law to file questionnaire along with the
application for recalling the witness-There
can be no dispute that the accused has a
right to summon any evidence/witness
which
may
be
relevant
for
proper
appreciation of the prosecution evidence
and to substantiate his defence, therefore,
in any case when the mobile and pen drive
have already been exhibited in the record,
then, recall of the injured witness appears
to be necessary for his re-examination by
the defence on the question of that video
clip- No prejudice is likely to be caused
either to the prosecution or the defence in
case the injured witness P.W.-5 Nitin is
recalled for his re-examination on the point
of aforesaid video clip.

There is no requirement under the law for filing
a questionnaire or list with the application filed
u/s 311 Cr.Pc. and the accused has a right to
summon any evidence or witness if it appears to
be essential for the just decision of the case.

Criminal Application allowed. ( Para 16, 20,
21) (E-3)

Judgements/ Case law relied upon:-

## Text

168 INDIAN LAW REPORTS ALLAHABAD SERIES

"17. There are three categories of
orders that a court can pass-final, intermediate
and interlocutory. There is no doubt that in
respect of a final order, a court can exercise its
revision jurisdiction-that in respect of a final
order of acquittal or conviction. There is equally
no doubt that in respect of an interlocutory order,
the court cannot exercise its revision jurisdiction.
As far as an intermediate order is concerned, the
court can exercise tis revision jurisdiction since it
is not a interlocutory order.

18. The concept of an intermediate order
first found mention in Amar Nath Vs. State of
Haryana (1977) 4 SCC 137 in which case the
interpretation and impact of Section 397 (2) of the
Cr.P.C. came up for consideration. This decision is
important for two reasons. Firstly, it gives the
historical reason for the enactment of Section 397(20
of Cr.P.C. and secondly considering that historical
background, it gives a justification for a restrictive
meaning to Section 482 of the Cr.P.C.

21. The concept of an intermediate
order was further elucidated in Madhu Limaye
Vs. State of Maharashtra, (1977) 4 SCC 551 by
4
of
5(5)
CRM-M-29578-2019
(O&M)
contradistinguishing a final order and an
interlocutory order. This decision lays down the
principle that an intermediate order is one which
is interlocutory in nature but when reserved, ti
has the effect of terminating the proceedings and
thereby resulting in a final order. Two such
intermediate orders immediately come to mind -
an order taking congnizance of an offence and
summoning an accused and an order for framing
charges.
Prima
facie
these
orders
are
interlocutory in natu4re, but when an order
taking congnizance and summoning an accused
is reversed, it has the effect of terminating the
proceedings against that person resulting in a
final order in his or her favour. similarly, an
order for framing of charges if reversed has the
effect of discharging the accused person and
resulting in a final order in his or her favour.
therefore, an intermediate order is one which if
passed in a certain way, the prceedings would
terminate but if passed in another way, the
proceedings would continue. "

14. In light of the fact that order under
Section 311 Cr.P.C. is an interlocutory order and
therefore against the rejection of an application
under Section 311 Cr.P.C., a revision was not
maintainable and therefore learned Additional
District and Sessions Judge, Pratapgarh has
wrongly assumed jurisdiction and exercised the
revisional powers under Section 397 Cr.P.C.
Under
such
circumstances,
the
learned
Additional District and Sessions Judge,
Pratapgarh should not have interfere with the
order passed by trial court. The impugned order
dated 11.06.2018 is clearly erroneous and is
accordingly is set aside.

15. The application is allowed.

16. The trial court is expected to
conclude the trial expeditiously without
giving any unnecessary adjournments.
----------
(2020)12ILR A168
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2020

BEFORE

THE HON'BLE RAJIV JOSHI, J.

Application U/S 482 No. 8463 of 2020

Amarjeet @ Kaluwa ...Applicant(In Jail)
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Kamal Krishna, Sri Mohd. Afzal

Counsel for the Opp. Parties:
A.G.A., Sri Pradeep Singh Sengar

Criminal Law -Code of Criminal Procedure,
1973- Section 311- In order to enable the
12 All. Amarjeet @ Kaluwa Vs. State of U.P. & Anr.
169
Court to find out the truth and render a
just decision, the salutary provisions of
Section 311 are enacted whereunder any
court by exercising its discretionary power
at any stage of inquiry, trial or other
proceeding can summon any person in
attendance though not summoned as a
witness or recall or re-examine any person
already examined who are expected to be
able to throw light upon the matter in
dispute. This power is to exercised with
caution and circumspection. Recall is not a
matter of course and the discretion has
been given to the court has to be
exercised judicially to prevent failure of
justice.

Any Court may summon any witness at any
stage of any inquiry , trial or other proceeding
as a witness for the just decision of the case but
the said power has to be exercised with caution
and circumspection.

Criminal Law- Code of Criminal Procedure,
1973- Section 311- No requirement under
the law to file questionnaire along with the
application for recalling the witness-There
can be no dispute that the accused has a
right to summon any evidence/witness
which
may
be
relevant
for
proper
appreciation of the prosecution evidence
and to substantiate his defence, therefore,
in any case when the mobile and pen drive
have already been exhibited in the record,
then, recall of the injured witness appears
to be necessary for his re-examination by
the defence on the question of that video
clip- No prejudice is likely to be caused
either to the prosecution or the defence in
case the injured witness P.W.-5 Nitin is
recalled for his re-examination on the point
of aforesaid video clip.

There is no requirement under the law for filing
a questionnaire or list with the application filed
u/s 311 Cr.Pc. and the accused has a right to
summon any evidence or witness if it appears to
be essential for the just decision of the case.

Criminal Application allowed. ( Para 16, 20,
21) (E-3)

Judgements/ Case law relied upon:-
1. Vijay Kumar Vs St. of U.P & anr., (2011) 8
SCC 136

2. Zahira Habibullah Sheikh & anr. Vs St. of Guj.
& ors., (2006) 3 SCC 374

3. State (NCT of Delhi) Vs Shiv Kumar Yadav &
anr., (2016) 2 SCC 402

(Delivered by Hon'ble Rajiv Joshi, J.)

1. The present application under Section
482 Cr.P.C has been moved with a prayer to
quash the impugned order dated 14.2.2020
passed by Additional Session Judge, Hapur in
Special Session Trial No. 89 of 2018 (State Vs.
Amarjeet @ Kaluwa and others) under sections
302, 307, 201, 376D, 394, 411 and 120 IPC and
section 3⁄4 POCSO Act, 2012 arising out of Case
Crime No. 438 of 2018, Police Station Hapur
Dehat, whereby the application ( No. 22/1)
dated 10.01.2020 of the applicant moved under
Section 311 Cr.P.C. for recalling PW-5 Nitin
(injured witness) has been rejected.

2. Heard Sri Kamal Krishna, learned
Senior Advocate assisted by Sri Mohd. Afzal,
learned counsel for the applicant, learned
A.G.A. for the State, and Sri Pradeep Singh
Sengar, learned counsel for the opposite party
no. 2. Perused the record.

3. The facts as reflect from the record
are that opposite party no. 2 had lodged an FIR
to the effect that on 05.09.2018 in the morning
when he had gone to bring fodder from his
field and his wife and son Himanshu had gone
to
Delhi
due
to
some
work,
his
daughter/victim aged about 12 years and son
Nitin aged about 10 both were at home. At
about 1.30 p.m. his nephew Lalit gave an
information to the informant that Nitin has
received some knife injury at his neck. Getting
this information, he reached home and did not
find his daughter there. Soon thereafter, he
reached Nandani Hospital, where his son Nitin
170 INDIAN LAW REPORTS ALLAHABAD SERIES
was admitted, on regaining consciousness, his
son has disclosed that co-accused Ankur Teli
and Sonu @ Pauwa were committing rape upon
her sister and when he raised alarm, they had
caused injury on his neck by knife and
thereafter he concealed himself in the house.
When he regained consciousness, he found
himself in hospital. When informant reached at
home along with police, he found the entire
house hold goods scattered all over the place
and jewellary etc. was missing. When police
party made search of his daughter, her dead
body was found in naked and dead condition in
the room beneath straw. On this information,
Case Crime No. 438 of 2018 was registered
against the co-accused Ankur Teli and Sonu @
Pauwa at P.S. Hapur Dehat, District Hapur on
05.09.2019 at about 20.05 hours.

4. After investigation, charge sheet has
been submitted in the case against the accusedapplicant along with two other co-accused on
27.10.2018 under the above mentioned
sections and after charges having been framed
against the accused persons, statements of 13
witnesses have been recorded in the trial. The
statement of PW-13, Kaushalendra Singh,
Investigating Officer, was recorded before the
trial
court
on
23.7.2019.
The
crossexamination of the said witnesses was done by
the accused persons. Subsequently, on the
basis of statement of PW-13, whereby the
applicant came to know about some Compact
Disc (C.D.) containing statement of the
injured- Nitin, which was the part of case
diary, he moved an application with a prayer
that the C.D. containing videography of the
statement of injured Nitin, may be given to the
applicant and then cross-examination of PW13 can be done. The said application dated
22.7.2019 was rejected by the trial court vide
order dated 24.7.2019.

5. Against the aforesaid order, the
applicant preferred an application u/s 482
Cr.P.C. No. 30532 of 2019, which was
allowed by this Court on 16.9.2019
directing the trial court to provide a copy of
the C.D.. Thereafter, an application was
moved on behalf of the applicant for supply
of a copy of the aforesaid C.D., which was
rejected by the trial court vide order dated
22.10.2019.

6. Against the said order of the trial
court dated 22.10.2019, the applicant again
moved an application u/s 482 Cr.P.C. No.
39761 of 2019, which was allowed by this
Court vide order dated 13.11.2019. The
operative portion of the said order reads as
under:

"I find that the Coordinate Bench
of this Court had already passed an order
dated 16.09.2019 directing for providing
the copy of the said CD, therefore the best
possible efforts ought to have been made by
the trial court to provide a copy of the
same. In my opinion, the trial court ought
to have sent the damaged CD to Central
Forensic Science Lab, Hyderabad with a
direction for preparing a copy of the same,
if the same was possible/feasible and in
case any report is received from the end of
the Central Forensic Science Laboratory,
Hyderabad the same could have been taken
into consideration. If the copy of the same
was not possible to be made, the
appropriate order could have been passed
taking into consideration the said report.

12. In view of above, the
impugned order is set aside and it is
directed to the trial court that it shall send
the damaged CD to Central Forensic
Science Laboratory, Hyderabad for a copy
of it to be prepared within a period of 15
days and obtain a report in respect to
opinion of the said laboratory within a
specified time period to be fixed by it and
after receipt of such a report from
laboratory, it may pass appropriate order.
12 All. Amarjeet @ Kaluwa Vs. State of U.P. & Anr.
171

13.
The
application
stands
allowed. "

7. Subsequently, the C.D was sent to
Central Forensic Laboratory as per the
order this Court and after analysis, a report
was submitted by the Central Forensic
Laboratory on 9.12.2019 to the effect that
the C.D is damaged and the Laboratory
does not have the facility to retrieve the
data from broken/damaged C.D. This
chapter came to an end. Subsequently, all
the prosecution witnesses have been
examined before the trial court. The
statement of the accused was also recorded
on 11.9.2019 under Section 313 Cr.P.C..
Thereafter, the case was fixed for defence
evidence of the accused persons under
Section 233 of Cr.P.C. Subsequently, the
applicant in his defence evidence produced
the list of witnesses on 3.1.2020 and also
produced the mobile (Vivo) and pen drive.

8. It is submitted by the accusedapplicant that the mobile phone contained
the video clip of injured witness PW-5
Nitin, recorded when he was treated in the
hospital. Thereafter, it was made viral and
also shared with the mobile of the
applicant.

9. The applicant in defence produced
DW-2 Krishna Pal Yadav @ Monu before
the trial court along with the video clip in
the mobile (Vivo) and pen drive with
certificate under Section 65-B of Indian
Evidence Act. As per the applicant, in this
video clip, the injured Nitin was disclosing
the names of the accused persons involved
in the offence. The pen drive and mobile
phone containing the video clip was
exhibited by the trial court. The statement
of DW-2 was recorded on 10.1.2020. The
applicant on the same day i.e. 10.1.2020
moved an application under Section 311
Cr.P.C. to recall the witness PW-5 Nitin
(injured) for his re-examination on the
question of said video clip.

10. The trial court vide impugned
order
dated
14.2.2020
rejected
the
application filed under Section 311 Cr.P.C.
on the ground that the application has been
moved just to delay the trial; that no list of
questions have been given and further that
the evidence of both the sides has been
concluded.

11. The order dated 14.2.2020 passed
by Additional Session Judge, Hapur in
Special Session Trial No. 89 of 2018 is
impugned in the present application.

12. While assailing the order
impugned, learned counsel for the applicant
firstly submitted that application under
section 311 has illegally been rejected by
the court below on the ground that the
application has been moved just to delay
the trial. According to the learned counsel,
since the applicant is in jail, there is no
question for delaying the trial by the
applicant. It is further submitted by the
learned counsel for applicant that there is
no requirement in law to submit a list of
questionnaire along with the application
filed under Section 311 Cr.P.C. for recalling
a witness. It is next submitted by learned
counsel for the applicant that the only stage
for submitting/producing the video clip of
the injured witness PW-5 Nitin is under
Section 233 Cr.P.C., which comes after
recording of statement under Section 313
Cr.P.C. and the accused-applicant can only
produce the video clip only in his defence
before the trial court and not before that,
and therefore, the further examination of
PW-5 Nitin is necessary for the purpose of
confronting his statement contained in the
video clip in which he has disclosed the
172 INDIAN LAW REPORTS ALLAHABAD SERIES
names of actual accused persons, who have
committed
the
offence.
It
is
lastly
submitted by learned counsel for the
applicant that no prejudice will be caused
to the prosecution, if the injured witness
P.W.-5 Nitin is confronted with the said
video clip in his re-examination.

13. On the other hand, learned
counsel for the informant as well as learned
AGA supported the impugned order and
submitted that the entire evidence in the
matter has been closed, the video clip
including the pen drive is already in the
knowledge of the accused-applicant, which
is apparent from the statement of PW-2
recorded on 5.9.2018 and the application
has been moved at a very belated stage,
which has rightly been rejected by the trial
court.

14. I have considered the submissions
so raised by learned counsel for the parties.

15. Before considering the statement,
provision of Section 311 Cr.P.C., is quoted
hereunder:

"311. 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."

16. From bare perusal of Section 311
Cr.P.C., it is apparent that in order to enable
the Court to find out the truth and render a
just decision, the salutary provisions of
Section 311 are enacted whereunder any
court by exercising its discretionary power at
any stage of inquiry, trial or other proceeding
can summon any person in attendance though
not summoned as a witness or recall or reexamine any person already examined who are
expected to be able to throw light upon the
matter in dispute. The object of the provision
as a whole is to do justice not only from the
point of view of the accused and the
prosecution but also from the point of view of
an orderly society. This power is to exercised
with caution and circumspection. Recall is not
a matter of course and the discretion has been
given to the court has to be exercised judicially
to prevent failure of justice. Therefore, the
reasons for exercising this power should be
spelt out in the order.

17. In Vijay Kumar v. State of Uttar
Pradesh and Anr., (2011) 8 SCC 136, the
Apex Court while explaining scope and
ambit ofSection 311has held as under:-

"17. ThoughSection 311confers vast
discretion upon the court and is expressed in the
widest possible terms, the discretionary power
under the said section can be invoked only for
the ends of justice. Discretionary power should
be exercised consistently with the provisions of
CrPCand the principles of criminal law. The
discretionary power conferred underSection
311has to be exercised judicially for reasons
stated by the court and not arbitrarily or
capriciously".

18. In Zahira Habibullah Sheikh (5)
andAnr. v. State of Gujarat and Others,
(2006) 3 SCC 374, the Apex Court has
considered
the
concept
underlining
underSection 311as under:-

"27. The object underlyingSection
311of the Code is that there may not be
failure of justice on account of mistake of
12 All. Amarjeet @ Kaluwa Vs. State of U.P. & Anr.
173
either party in bringing the valuable
evidence on record or leaving ambiguity in
the statements of the witnesses examined
from either side. The determinative factor is
whether it is essential to the just decision of
the case. The section is not limited only for
the benefit of the accused, and it will not be
an improper exercise of the powers of the
court to summon a witness under the
section merely because the evidence
supports the case of the prosecution and
not that of the accused. The section is a
general section which applies to all
proceedings, enquiries and trials underthe
Codeand empowers the Magistrate toissue
summons to any witness at any stage of
such
proceedings,
trial
or
enquiry.
InSection 311the significant expression that
occurs is "at any stage of any inquiry or
trial or other proceeding under this Code".
It is, however, to be borne in mind that
whereas the section confers a very wide
power on the court on summoning
witnesses, the discretion conferred is to be
exercised judiciously, as the wider the
power the greater is the necessity for
application of judicial mind".

19. In State (NCT of Delhi) v. Shiv
Kumar Yadav & Anr., (2016) 2 SCC 402, it
was held thus:-

".... Certainly, recall could be
permitted if essential for the just decision,
but not on such consideration as has been
adopted
in
the
present
case.
Mere
observation that recall was necessary "for
ensuring fair trial" is not enough unless
there are tangible reasons to show how the
fair trial suffered without recall. Recall is
not a matter of course and the discretion
given to the court has to be exercised
judiciously to prevent failure of justice and
not arbitrarily. While the party is even
permitted to correct its bona fide error and
may be entitled to further opportunity even
when such opportunity may be sought
without any fault on the part of the opposite
party, plea for recall for advancing justice
has to be bona fide and has to be balanced
carefully
with
the
other
relevant
considerations
including
uncalled
for
hardship to the witnesses and uncalled for
delay in thetrial. Having regard to these
considerations, there is no ground to justify
the recall of witnesses already examined".

20. Now, in the present case, the
statement of the injured PW-5 has been
recorded on 12.2.2019 and cross-examination
of the said witness was also conducted by the
accused. The pen drive (Kha 2) as well as
video clip (Kha 3) have already been exhibited
by the court, which appears to be necessary for
just decision of the case. So far as the
observation made by the trial court that the
said application is without the list of
questionnaire is concerned, it is firstly stated
that there is no requirement under the law to
file questionnaire along with the application
for recalling the witness and secondly that it is
clearly mentioned in the application under
section 311,Cr.P.C. itself that injured witness
P.W.-5 Nitin is to be summoned with regard to
the contents of his video clip. When the
accused-applicant is in jail, therefore, there is
also no occasion to delay the proceeding of the
trial. There can be no dispute that the accused
has a right to summon any evidence/witness
which may be relevant for proper appreciation
of the prosecution evidence and to substantiate
his defence, therefore, in any case when the
mobile and pen drive have already been
exhibited in the record, then, recall of the
injured witness appears to be necessary for his
re-examination by the defence on the question
of that video clip.

21. Taking into consideration the
entire facts and circumstances as well as
174 INDIAN LAW REPORTS ALLAHABAD SERIES
the earlier orders passed by this Court
referred to above, in the considered opinion
of this Court, no prejudice is likely to be
caused either to the prosecution or the
defence in case the injured witness P.W.-5
Nitin is recalled for his re-examination on
the point of aforesaid video clip. The trial
court has not dealt with the merits of the
case and proceeded to reject the application
on irrelevant grounds.

22. Consequently, the order dated
14.2.2020 passed by Additional Session
Judge, Hapur in Special Session Trial No.
89 of 2018 (State Vs. Amarjeet @ Kaluwa
and others) cannot be sustained in the eyes
of law and the same is hereby set aside.

23. The application stands allowed.
The trial court is directed to recall the
injured witness PW-5 Nitin under section
311 Cr.P.C. for the said purpose at an early
date.
----------
(2020)12ILR A174
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE SHAMIN AHMED, J.

Application U/S 482 No. 12474 of 2020

Chhotu ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Amit Saran, Sri Niklank Kumar Jain

Counsel for the Opposite Party:
A.G.A.

Criminal Law- Code of Criminal Procedure,
1973- Section 167 (2) - Right to default
bail- It is evident from the record itself
that the applicant was taken custody in
alleged crime on 02.02.2020 and till
expiry of 90 days i.e. 02.05.2020 the
investigating agency failed to submit any
charge
sheet/challan
against
the
applicant within the meaning of Section
173(2) CrPC before the court of learned
Special
Judge,
POCSO
Act/Additional
Sessions Judge, Etah and the same was
filed on 01.06.2020 much after expiry of
90 days, thus the trial court ought to have
allowed applicant's application moved
under Section 167(2) CrPC and released
the applicant on default bail, but the
learned
court
below
had
committed
manifest
error
of
law
in
rejecting
applicant's application vide order dated
3.6.2020.

Where the prosecution fails to submit the
Chargesheet/ Police Report u/s 173 (2) within
90 days, an indefeasible right to default bail
accrues to the accused.

Criminal Application allowed. (Para 9) (E-3)

Case law/ Judgements relied upon:-

1. Rakesh Kumar Paul Vs St. of Assam, (2017)
15 SCC 67

2. Bikramjit Singh Vs The State of Punj. in Criminal
Appeal No.667 of 2020 arising out of SLP (Crl.)
No.2933 of 2020, decided on 12.10.2020

3. Pragya Singh Thakur Vs St. of Maha. (2011)
10 SCC 445

4. U.O.I Vs Nirala Yadav (2014) 9 SCC 457

5. Syed Mohd. Ahmad Kazmi Vs. State (Govt. of
NCT of Delhi) (2012) 12 SCC 1

6. Saravanan Vs State rep. by the Inspr, of Police
(Criminal Appeal Nos.681-682 of 2020, arising from
S.L.P. (Criminal) Nos.4386/4387/2020)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. This application under Section 482
CrPC has been filed by the applicant for