# Gaurav Gulati @ Dipesh Gulati v. State of U.P

- **Citation:** (2021) 10 ILRA 355
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-06
- **Case number:** Application U/S 482 Cr.P.C. No. 9189 of 2021
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-gulati-dipesh-gulati-v-state-of-u-p-46330
- **Pages:** 4

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 311 - power to summon
material witness, or examine person
present - Indian Penal Code, 1860 -
Sections 394, 302, 201, 411 - court is
competent to exercise power even suo
motu if no application under section 311
CrPC has been filed by either of the
parties - Court must satisfy itself, that it
was in fact essential to examine such a
witness, or to recall him for further
examination in order to arrive at a just
decision of the case.(Para - 6)

Applicant filed an application under section 311
Cr.P.C. - for summoning Dr. Sunil Yadav, as a
court witness, who had conducted medical
examination - trial Judge vide order dated
12.02.2021 rejected the application .

HELD:-The Court shall summon and examine or
recall and re-examine any such person if his
evidence appears to be essential to the just
decision of the case, the impugned order dated
12.02.2021 is hereby quashed and matter is
remitted back to the court concerned.(Para - 9)

Application u/s 482 Cr.P.C. partly allowed.
(E-7)

List of Cases cited:-

Natasa Singh Vs Cbi (State)

## Text

10 All. Gaurav Gulati @ Dipesh Gulati Vs. State of U.P.
355
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)10ILR A355
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2021

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Application U/S 482 Cr.P.C. No. 9189 of 2021

Gaurav Gulati @ Dipesh Gulati ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Awadesh Kumar Shukla

Counsel for the Opposite Party:
A.G.A., Sri Kamlesh Kumar Dwivedi

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 311 - power to summon
material witness, or examine person
present - Indian Penal Code, 1860 -
Sections 394, 302, 201, 411 - court is
competent to exercise power even suo
motu if no application under section 311
CrPC has been filed by either of the
parties - Court must satisfy itself, that it
was in fact essential to examine such a
witness, or to recall him for further
examination in order to arrive at a just
decision of the case.(Para - 6)

Applicant filed an application under section 311
Cr.P.C. - for summoning Dr. Sunil Yadav, as a
court witness, who had conducted medical
examination - trial Judge vide order dated
12.02.2021 rejected the application .

HELD:-The Court shall summon and examine or
recall and re-examine any such person if his
evidence appears to be essential to the just
decision of the case, the impugned order dated
12.02.2021 is hereby quashed and matter is
remitted back to the court concerned.(Para - 9)

Application u/s 482 Cr.P.C. partly allowed.
(E-7)

List of Cases cited:-

Natasa Singh Vs Cbi (State)

(Delivered by Hon'ble Gautam
Chowdhary, J.)

1. Learned counsel for the applicant
files rejoinder affidavit today, taken on
record.

2.

Heard
learned
counsel
for
applicant, learned A.G.A. for the State, Sri
Kamlesh Kumar Dwivedi, learned counsel
for O.P. No. 2 perused the record.

3. This application has been filed with
a prayer to set aside the order dated
12.02.2021 passed in the application moved
by the counsel for the accused/applicant
rejecting the application paper No. 100 Kha
in S.S.T. No. 447 of 2015 (State Vs.
Gaurav Gulati @ Dipesh) arising out of
case crime No. 607 of 2015, under sections
394, 302, 201, 411 IPC, P.S. Hariparwat,
District Agra and further may be pleased to
direct the learned court below to summon
the Dr. Sunil Yadav, under section 311
Cr.P.C. as a court witness to get him
examine on oath for just decision of the
case.

4. It is contended by learned counsel
for the applicant that the FIR of the present
against the unknown person has been
lodged on 23.06.2015 with case crime no.
607 of 2015, under sections 394, 302 IPC,
P.S. Hariparwat, District Agra. After
lodging the FIR the inquest report of both
the deceased namely Km. Diksha nd Smt.
356 INDIAN LAW REPORTS ALLAHABAD SERIES
Rama Gulati were prepared and doctor
opinion the cause of death due to shock and
hemorrhage as a result of anti mortem
injury. Thereafter the I.O. claims to have
recorded the statement of Nidhi Gulati,
who is the married daughter of informant
on 25.06.2015 on the basis of suspicion
because after murder of her sister and
mother the applicant has not came into the
house of her parent. Thereafter I.O. further
claims that when the applicant was arrested
he told his name and father's name and on
seeing his hands carefully, there were some
injuries on his palm and fingers caused by
sharp edge weapon and showed false
recovery
from
his
possession
on
28.06.2015 and after making arrest of the
applicant
he
was
sent
to
medical
examination in the clinic of Dr. Sunil
Yadav posted as Emergency medical
Officer, district Hospital, Agra wherein the
medical examination report of the applicant
was conducted and doctor noted Nil injury.
After completing the investigation, the I.O
has submitted the charge sheet against the
applicant, on which the learned Magistrate
has taken the cognizance and case was
committed to the court of sessions as SST
No. 447 of 2015.

5. It is further contended by learned
counsel for the applicant during pendency
of trial the applicant has filed an
application under section 311 Cr.P.C. for
summoning of the Dr. Sunil Yadav, as a
court witness, who had conducted his
medical examination for just decision of
the case but the learned trial Judge vide
order dated 12.02.2021 had rejected the
application filed under section 311 Cr.P.C.
filed by the applicant without considering
the facts and circumstances of the case.

6. Learned counsel for the applicant
has also placed the reliance of Hon'ble
Supreme Court in the case of Natasa Singh
Vs. Cbi (State) on 8.3.2019 wherein it has
been stated that,

"The court is competent to
exercise such power even suo motu if no
such application has been filed by either of
the parties. However, the court must satisfy
itself, that it was in fact essential to
examine such a witness, or to recall him for
further examination in order to arrive at a
just decision of the case.

8. In Mir Mohd. Omar & Ors. v.
State of West Bengal, AIR 1989 SC 1785,
this Court examined an issue wherein, after
the statement of the accused under Section
313 Cr.P.C. had been recorded, the
prosecution had filed an application to
further examine a witness and the High
Court had allowed the same. This Court
then held, that once the accused has been
examined under Section 313 Cr.P.C., in the
event that liberty is given to the prosecution
to recall a witness, the same may amount to
filling up a lacuna existing in the case of
the prosecution and therefore, that such an
order was uncalled for."

Learned counsel for the applicant
has again placed the reliance of this Court
in the case of Manju Devi Vs. State of
Rajasthan, which is quoted below:

On the other hand, Mr Senthil
Jagadeesan has drawn the attention of the
Court to the depositions of PW-1 and PW11. Adverting also to the purported Board
Minutes at Annexure P-2 (a photocopy of
which has been filed at Annexure R-2 of the
counter-affidavit), it has been submitted
that the document, as a matter of fact, does
not have the signatures of the members of
the Board. Moreover, it has been urged
that PW-1, who is the Chairman of
10 All. Gaurav Gulati @ Dipesh Gulati Vs. State of U.P.
357
TANGEDCO, during the course of his
deposition, submitted that he had granted
sanction for the prosecution of the
respondent and the co-accused without
reference to the Board, and that he was
entitled to do so in accordance with the
provisions of the PC Act.

It needs hardly any emphasis that
the discretionary powers like those under
Section 311 CrPC are essentially intended
to ensure that every necessary and
appropriate measure is taken by the Court
to keep the record straight and to clear any
ambiguity in so far as the evidence is
concerned as also to ensure that no
prejudice is caused to anyone. The
principles underlying Section 311 CrPC
and amplitude of the powers of the Court
thereunder have been explained by this
Court in several decisions 1. In Natasha
Singh v. CBI (State) : (2013) 5 SCC 741,
though the application for examination of
witnesses was filed by the accused but, on
the principles relating to the exercise of
powers under Section 311, this Court
observed, inter alia, as under:-

" 8. Section 311 CrPC empowers
the court to summon a material witness, or
to examine a person present at ?any stage?
of ?any enquiry?, or ?trial?, or ?any other
proceedings? under CrPC, or to summon
any person as a witness, or to recall and
re-examine any person who has already
been examined if his evidence appears to it,
to be essential to the arrival of a just
decision of the case. Undoubtedly, the
CrPC
has
conferred
a
very
wide
discretionary power upon the court in this
respect, but such a discretion is to be
exercised judiciously and not arbitrarily.
The power of the court in this context is
very wide, and in exercise of the same, it
may summon any person as a witness at
any stage of the trial, or other proceedings.
The court is competent to exercise such
power even suo motu if no such application
has been filed by either of the parties.
However, the court must satisfy itself, that
it was in fact essential to examine such a
witness, or to recall him for further
examination in order to arrive at a just
decision of the case.

7. Learned counsel has again drawn
the attention of the section 311 Cr.P.C.
which is as under,

"that
the
object
underlying
Section 311 CrPC is that there may not be
failure of justice on account of mistake of
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 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 the
discretionary
power
conferred
under
Section 311 CrPC has to be exercised
judiciously, as it is always said ?wider the
power, greater is the necessity of caution
while exercise of judicious discretion.?

8. In reply of the above contention,
learned A.G.A. as well as learned counsel
for O.P.No. 2 placed the reliance in the
case of Sri Asha Vs. State of U.P. decided
on 18.11.2020 in Crl. Misc. Application
No. 13126 of 2020, which is quoted below:

"17. The powers under Section
311 Cr.P.C. is the discretion or the
obligation of the Court to summon or recall
a witness, but this discretion of the Court
cannot be forced to be used by the accused
or the prosecution. While considering the
358 INDIAN LAW REPORTS ALLAHABAD SERIES
present case it is clear that on behalf of the
deceased sister an application under
Section 311 Cr.P.C. had been moved in
which no ground at all were brought
forward as to why the witness needs to be
summoned for examination whereas P.W.1
who is eye witness has been examined and
cross examined. Applicant here is sister of
deceased, who is not the informant nor the
witness in the case and prosecution has
examined P.W.1, who is real brother and
eye witness of the deceased. There are 36
witnesses whose statements have been
recorded by Investigating Officer. All are
not required to be examined. Prosecution
has to consider which witness has to be
produced and to be examined. Out of 36
witness, 11 prosecution witnesses have
been examined and prosecution evidence
have been closed. The Hon'ble High Court
while rejecting bail application of accused,
directed the court below to conclude the
trial expeditiously within a period of two
months from the date of production of
certified copy of this order. In application,
no reason has been given as to why earlier,
application for examination of witness has
not been moved and what is relevancy of
his examination. The prosecution was given
much opportunity to produce evidence and
prosecution examined all the witness to
whom he wanted to be examined but when
Hon'ble High Court passed the order for
expedite the trial then to linger on the case,
moved present application under Section
311 Cr.P.C. It is well settled law that under
Section 311 Cr.P.C. cannot be invoked
mere to fill up lacuna of the case but to fair
and just decision of the case.

18. In the end, I do not find any
illegality in the impugned order requiring
any interference by this Court in exercise of
inherent power under Section 482 Cr.P.C.
and consequently, the prayer for quashing
the impugned order dated 24.02.2020
passed by Additional Sessions Judge, Court
No.3, Saharanpur in S.T. No.605 of 2015,
Crime No.169 of 2014 filed under Sections
147, 148, 149, 302, 120-B I.P.C., Police
Station Kotwali, District Saharanpur is
refused."

9. From the perusal of the application
filed under section 311 Cr.P.C. as well as
the order passed therein and submissions
made by learned counsel for the both the
parties and the case law cited by both the
parties, as well as the provision itself
permits that the Court shall summon and
examine or recall and re-examine any such
person if his evidence appears to be
essential to the just decision of the case, the
impugned order dated 12.02.2021 is hereby
quashed and matter is remitted back to the
court concerned to pass an appropriate
order after hearing both the parties within a
period of two weeks from the date of
production of computer generated copy of
this order.

10. Accordingly this application is
partly allowed.
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(2021)10ILR A358
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2021

BEFORE

THE HON'BLE UMESH KUMAR, J.

Application U/S 482 Cr.P.C. No. 9469 of 2020

Rishipal @ Rishipal Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Abhitab Kumar Tiwari