# Harbhajan Singh v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 925
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-14
- **Case number:** Application U/S 482. No. 2138 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harbhajan-singh-v-state-of-u-p-anr-51710
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 504, 506, 307 &
302 - Code of Criminal Procedure, 1973 -
Sections 311 & 319 - Recall of witness -
Validity of - Application u/s 311, Cr.P.C.
was moved by accused on ground that,
upon summoning of accused Deependra
Singh u/s 319 Cr.P.C., trial commenced de
novo, entitling all accused to re-crossexamine PW-1 - Trial court without taking
into consideration that PW-1 had already
been examined by prosecution, further
counsel for applicant and other coaccused Ram Nath Singh had also cross-
926 INDIAN LAW REPORTS ALLAHABAD SERIES
examined him - As Deependra Singh was
summoned after PW-1's examination, no
ground existed for his recall, application
was accordingly rejected - Held, Section
319(4) Cr.P.C. makes clear that where
person
is
summoned
u/s
319(1),
proceedings
commenced
afresh
and
witnesses re-heard only in respect of such
person, and not all accused - Since
applicant has been accused from inception
of trial and has already cross-examined
PW-1, he has no right to recall PW-1 for
further cross-examination merely because
prosecution re-examined him consequent
to summoning of another accused u/s 319
Cr.P.C. - Thus, no illegality in impugned
order, dismissed. (Para 3, 8, 10)

Application Dismissed. (E-13)

List of Cases cited:

## Text

3 All. Harbhajan Singh Vs. State of U.P. & Anr.
925

11. उपरोक्त आदेश की िैिता को
चुनौती इस आिार पर िी दी गयी है कक
प्रार्थी के विरुद्ि लगाये गये आरोप असत्य
हैं।

12. माननीय सिोच्च न्यायालय के
तनणगय केंद्रीय िांच ब्यूरो बनाम आयुन
स ंह आटद, 2023 ए ी ी ऑनलाइन
ए ी 379 में अििाररत है कक िारा 482
दिं०प्र०सिं० के अिंतगगत शजक्तयों का उपयोग
करते हुए न्यायालय को लघु विचारण
(समनी रायल) करने की आिश्यकता नहीिं
है। इसमें असियोजन / जािंच एजेंसी को
आरोपों को साबित करने की आिश्यकता
नहीिं है। दिं०प्र०सिं० की िारा 482 के अिंतगगत
शजक्तयों का उपयोग करते समय न्यायालय
के पास िहुत सीसमत अधिकार क्षेत्र है और
मात्र यह विचार करने की आिश्यकता है
कक "क्या आरोपी के विरुद्ि आगे िढ़ने के
सलए कोई पयागप्त सामग्री उपलब्ि है,
जजसके सलए आरोपी पर मुकदमा चलाने की
आिश्यकता है या नहीिं"।

13. अतः प्रार्थी के विरुद्ि आपराधिक
कायगिाही बिना विचारण के इस स्तर पर
इस आिार पर अपास्त नहीिं की जा सकती
है कक प्रार्थी के कर्थनानुसार उसके विरुद्ि
लगाए गए आरोप असत्य हैं।

14. प्रार्थी के विरुद्ि आपराधिक
कायगिाही तनरस्त करने का कोई आिार
नहीिं है और प्रार्थगना पत्र िलहीन है, तदनुसार
यह प्रार्थगना-पत्र इस तनदेश के सार्थ
तनस्ताररत ककया जाता है कक यहद प्रार्थी
विचारण न्यायलय के समक्ष उपजस्र्थत
होकर जमानत पर ररहाई हेतु प्रार्थगना पत्र
देता है तो उसे माननीय उच्चतम न्यायालय
द्िारा
 तेंदर
कुमार
अंनतल
बनाम
 ी.बी.आई. (2021) 10 ए ी ी 773 में
अििाररत विधिक ससद्िािंतों के आलोक में
शीघ्रतापूिगक तनणीत ककया जायेगा।
----------
(2024) 3 ILRA 925
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.03.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 2138 of 2024

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

Counsel for the Applicant:
Amit Kumar Singh, Brijendra Pratap Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 504, 506, 307 &
302 - Code of Criminal Procedure, 1973 -
Sections 311 & 319 - Recall of witness -
Validity of - Application u/s 311, Cr.P.C.
was moved by accused on ground that,
upon summoning of accused Deependra
Singh u/s 319 Cr.P.C., trial commenced de
novo, entitling all accused to re-crossexamine PW-1 - Trial court without taking
into consideration that PW-1 had already
been examined by prosecution, further
counsel for applicant and other coaccused Ram Nath Singh had also cross-
926 INDIAN LAW REPORTS ALLAHABAD SERIES
examined him - As Deependra Singh was
summoned after PW-1's examination, no
ground existed for his recall, application
was accordingly rejected - Held, Section
319(4) Cr.P.C. makes clear that where
person
is
summoned
u/s
319(1),
proceedings
commenced
afresh
and
witnesses re-heard only in respect of such
person, and not all accused - Since
applicant has been accused from inception
of trial and has already cross-examined
PW-1, he has no right to recall PW-1 for
further cross-examination merely because
prosecution re-examined him consequent
to summoning of another accused u/s 319
Cr.P.C. - Thus, no illegality in impugned
order, dismissed. (Para 3, 8, 10)

Application Dismissed. (E-13)

List of Cases cited:

1.
St.
represented
by
the
Deputy
Superintendent
of
Police
Vs
Tr.
N.
Seenivasagan: (2021) 14 SCC 1 : 2021 SCC
OnLine SC 212, (Paras 12, 13, 15)

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard Sri Amit Kumar Singh, the
learned counsel for the applicant, Sri
Anurag Verma, the learned A.G.A.-I
appearing on behalf of the State and
perused the records.

2. By means of the instant application
the applicant has challenged the validity of
an order dated 22.12.2023, passed by the
learned Additional District and Sessions
Judge/Special Judge, E.C. Act, Court No.4,
Sultanpur in Sessions Trial No.467 of
2016, under Sections 147, 148, 149, 504,
506, 307, 302 I.P.C. Police Station Jamo,
District Amethi, whereby the application
filed by the applicant and another coaccused Ram Nath Singh under Section
311 Cr.P.C. for recall of PW-1 for being
cross-examined by them has been rejected.

3. The application under Section 311
Cr.P.C. was filed on the ground that the
accused Deependra Singh was summoned
to face trial under Section 319 Cr.P.C. after
PW-1 was reexamined and he was crossexamined on behalf of the newly added
accused Deependra Singh. However, other
accused person did not cross-examine the
said witness after his recall. It was stated in
the application that after a person is
summoned as an accused under Section
319 Cr.P.C. the trial starts de novo and
therefore all the accused persons have the
right to cross-examine him. The learned
trial court rejected the application without
taking into consideration the fact that after
PW-1 was examined by the prosecution the
counsel for the applicant had crossexamined him and the record of cross
examination runs into 17 pages. The said
witness was cross-examined by other coaccused Ram Nath Singh also and that
cross-examination runs into 7 pages.
Deependra Singh was summoned to face
trial under Section 319 Cr.P.C. after PW-1
had been examined. In these circumstances
there is no ground for recalling the PW-1
for being cross-examined by the accused
person, on whose behalf he has already
been cross-examined extensively.

4. The learned trial court has also
taken into consideration the fact that this
court has issued a direction for expeditious
disposal of the trial.

5. The learned counsel for the
applicant has relied upon a decision of
Hon'ble Supreme Court in the case of State
represented
by
the
Deputy
Superintendent of Police Vs. Tr. N.
Seenivasagan: (2021) 14 SCC 1 : 2021
SCC OnLine SC 212, wherein the Hon'ble
Supreme Court has held as under: -

"12. In our view, having due
regard to the nature and ambit of Section
3 All. Harbhajan Singh Vs. State of U.P. & Anr.
927
311 of the CrPC, it was appropriate and
proper that the applications filed by the
prosecution ought to have been allowed.
Section 311 provides that any court may, at
any stage of any inquiry, trial or other
proceedings under CrPC, 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". The true test,
therefore, is whether it appears to the
Court that the evidence of such person who
is sought to be recalled is essential to the
just decision of the case.

13. In Manju Devi v. State of
Rajasthan [ (2019) 6 SCC 203] , a twoJudge Bench of this Court noted that an
application under Section 311 could not be
rejected on the sole ground that the case
had been pending for an inordinate amount
of time (ten years there). Rather, it noted
that : (SCC p. 209, para 13)

"13. ... the length/duration of a
case cannot displace the basic requirement
of ensuring the just decision after taking all
the necessary and material evidence on
record. In other words, the age of a case,
by itself, cannot be decisive of the matter
when a prayer is made for examination of a
material witness".

Speaking for the Court, Dinesh
Maheshwari J. expounded on the principles
underlying Section 311 in the following
terms :

"10.
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 insofar
as the evidence is concerned as also to
ensure that no prejudice is caused to
anyone. The principles underlying Section
311CrPC and amplitude of the powers of
the court thereunder have been explained
by this Court in several decisions. In
Natasha Singh v. CBI [ (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, 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.
***

15. The scope and object of the
provision is to enable the court to
determine the truth and to render a just
decision after discovering all relevant facts
and obtaining proper proof of such facts, to
arrive at a just decision of the case. Power
must be exercised judiciously and not
928 INDIAN LAW REPORTS ALLAHABAD SERIES
capriciously
or
arbitrarily,
as
any
improper or capricious exercise of such
power may lead to undesirable results. An
application under Section 311CrPC must
not be allowed only to fill up a lacuna in
the case of the prosecution, or of the
defence, or to the disadvantage of the
accused, or to cause serious prejudice to
the defence of the accused, or to give an
unfair advantage to the opposite party.
Further, the additional evidence must not
be received as a disguise for retrial, or to
change the nature of the case against either
of the parties. Such a power must be
exercised, provided that the evidence that is
likely to be tendered by a witness, is
germane
to
the
issue
involved.
An
opportunity of rebuttal however, must be
given to the other party. The power
conferred under Section 311CrPC must
therefore, be invoked by the court only in
order to meet the ends of justice, for strong
and valid reasons, and the same must be
exercised
with
great
caution
and
circumspection. The very use of words such
as "any court", "at any stage", or "or any
enquiry, trial or other proceedings", "any
person" and "any such person" clearly
spells out that the provisions of this section
have been expressed in the widest possible
terms, and do not limit the discretion of the
court in any way. There is thus no escape if
the fresh evidence to be obtained is
essential to the just decision of the case.
The determinative factor should therefore
be, whether the summoning/recalling of the
said witness is in fact, essential to the just
decision of the case."

(emphasis in original)

6. Per contra, the learned A.G.A.-I
has submitted that the PW-1 was recalled
for being examined after the witness
Deependra Singh was summoned to face
trial under Section 319 Cr.P.C. As per the
provisions contained in Section 319 (4)
Cr.P.C. the proceedings can commence
afresh only against the accused who has
been summoned under Section 319 Cr.P.C.
and not against all the accused persons. In
these circumstances, only the accused who
has been summoned under Section 319
Cr.P.C. has a right to cross-examine the
witness and the persons who were accused
since before and who had already availed
opportunity of cross-examining the witness,
have no right to cross-examine the witness
again.

7. Section 319 (4) Cr.P.C. provides as
follows: -

"319. Power to proceed against
other persons appearing to be guilty of
offence.-(1) Where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any person
not being the accused has committed any
offence for which such person could be
tried together with the accused, the Court
may proceed against such person for the
offence
which
he
appears
to
have
committed.

(2) Where such person is not
attending the Court, he may be arrested or
summoned, as the circumstances of the
case
may
require,
for
the
purpose
aforesaid.

(3) Any person attending the
Court, although not under arrest or upon a
summons, may be detained by such Court
for the purpose of the inquiry into, or trial
of, the offence which he appears to have
committed.

(4) Where the Court proceeds
against any person under sub-section (1)
then-
3 All. Ajay Singh @ Golu Vs. State of U.P. & Anr.
929

(a) the proceedings in respect of
such person shall be commenced afresh,
and the witnesses re-heard;

(b) subject to the provisions of
clause (a), the case may proceed as if such
person had been an accused person when
the Court took cognizance of the offence
upon which the inquiry or trial was
commenced."

8. A bare reading of Section 319 (4)
Cr.P.C. indicates that where a person is
summoned under Section 319 (1) to face
the
trial,
the
proceedings
shall
be
commenced afresh and the witnesses reheard only in respect of such person and
not in respect of all the accused persons.
Therefore, the applicant having been an
accused since inception of the tiral and he
already having cross examined the witness
PW-1, he has no right to recall PW-1 for
cross examining him again after he was reexamined by the prosecution consequent to
another accused being summoned under
Section 319 Cr.P.C.

9. Although, it is correct that Section
311 Cr.P.C. confers wide powers on the
court to summon any witness at any stage
of the enquiry, trial or other proceeding but
that power has to be exercised only when it
is essential for just decision of the case.

10. In these circumstances, the
applicant has no right to seek further crossexamination of PW-1 and such crossexamination is not at all essential for just
decision of the case. There appears to be no
illegality in the impugned order. The
application lacks merit and the same is
accordingly dismissed.
----------
(2024) 3 ILRA 929
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2024
BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 2173 of 2024

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

Counsel for the Applicant:
Annapurna Agnihotri

Counsel for the Opposite Parties:
G.A.

आपराकिि कवकि : र्ारतीय दंि संकहता, 1860 - िारा 147,
406, 420, 504, 506 - दंि प्रकक्रया संकहता, 1973 -
िारा 62, 64, 65, 87 - र्ैर िमािती वारंट िे कवरुद्ध - प्राथी
द्वारा आदेश कदिांि 16.01.2024 िी वैिता िो चुिौती दी र्ई,
किसिे अंतर्गत कवचारण न्यायालय िे समि िारी किए िािे िे उपरांत र्ी
प्राथी िी अिुपकस्ट्थकत िे आिार पर उसिे कवरुद्ध र्ैर-िमािती वारंट िारी
किया - न्यायालय िे ररिॉिग पर ऐसा िोई िारण िहीं दशागया कि प्राथी
पर समि िी सम्यि तामील हो चुिी थी और उसिे उपरांत र्ी वह
न्यायालय िे समक्ष उपकस्ट्थत िहीं हुआ - कबिा तामील िी पुकष्ट एवं कबिा
िमािती वारंट िारी किए सीिे र्ैर-िमािती वारंट पाररत िरिा न्यायालय
िे अकििारों िा दुरुपयोर् मािा र्या और ऐसा आदेश कवकि में संिायग
िहीं पाया र्या - प्राथी िो किदेकशत किया र्या कि वह न्याकयि मकिस्ट्रेट
िे समक्ष कियत कतकथ िो उपकस्ट्थत होिर िारा 88 दं.प्र.सं. िे अंतर्गत
कििी बंिपत्र एवं दो प्रकतर्ू किष्पाकदत िरे तथा कवचारण में सहयोर् िरे।
(पैरा 5, 18, 21, 23)

आवेदि स्ट्वीिार I (E-13)

प्रोद्धृत मामलों िी सूची:

1. केन्रीय जाांच ब्यरो बनाम आयान वसांह आवि, 2023 एसएससी ऑनलाइन
एससी 379

2. इन्र मोहन गोस्वामी िथा एक अन्य बनाम उिराांचल राज्य िथा अन्य
(2007) 12 एससीसी पृष्ठ 01

3. ववकास बनाम राजस्थान राज्य (2014) 3 एससीसी पृष्ठ 321
(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. प्रार्थी की विद्िान अधििक्ता सुश्री
अन्नपूणाग
अजग्नहोत्री
तर्था
विद्िान