# Harish Chandra & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 407
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-10
- **Case number:** Application u/s 482 No. 32841 of 2008
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harish-chandra-ors-v-state-of-u-p-anr-opp-parties-49963
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 & 311 -
Indian Penal Code, 1860 - Sections 304,
323 & 504-Challenge to-Summoning order
u/s
311
Cr.P.C-allowed-injured
eye
witnesses were medically examined and
the original injury reports had been taken
by the police-Police did not made them
witness under the connivance of the
accused
persons
while
the
proposed
witnesses had received injuries with the
deceased at the time of incident-Inspite of
getting
their
medical
report,
their
statement had not been recorded by the
IO nor the same has not been annexed
with the charge sheet-Mentioning the
name of all witnesses in FIR or in
statements u/s 161 Cr.P.C. is not a
requirement of law-Such witnesses can
also be examined by prosecution with the
permission of the court-Non-mentioning
of the name of any witness in the FIR
would not justify rejection of evidence of
eye-witnesses-Thus, the trial court rightly
allowed the application.(Para 1 to 20)

B. 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.
It is, however, to be borne in mind that
the discretionary power conferred u/s 311
Cr.PC has to be exercised judiciously.(Para
16)

The application is dismissed. (E-6)

List of Cases cited:

## Text

4 All. Harish Chandra & Ors. Vs. State of U.P. & Anr.
407
Mau, is directed to go through the Case
Diary and the Charge-sheet and thereafter
pass
afresh
order
in
light
of
the
observations made above.

24. The District Judge Mau, is
directed to guide the concerned Judicial
Officer.
----------
(2023) 4 ILRA 407
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 32841 of 2008

Harish Chandra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Brijendra Kumar Ojha, Sri B.D. Sharma, Sri P.K.
Dubey, Sri Suresh Dhar Dwivedi

Counsel for the Opp. Parties:
G.A., Sri Anupam Tripathi

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 & 311 -
Indian Penal Code, 1860 - Sections 304,
323 & 504-Challenge to-Summoning order
u/s
311
Cr.P.C-allowed-injured
eye
witnesses were medically examined and
the original injury reports had been taken
by the police-Police did not made them
witness under the connivance of the
accused
persons
while
the
proposed
witnesses had received injuries with the
deceased at the time of incident-Inspite of
getting
their
medical
report,
their
statement had not been recorded by the
IO nor the same has not been annexed
with the charge sheet-Mentioning the
name of all witnesses in FIR or in
statements u/s 161 Cr.P.C. is not a
requirement of law-Such witnesses can
also be examined by prosecution with the
permission of the court-Non-mentioning
of the name of any witness in the FIR
would not justify rejection of evidence of
eye-witnesses-Thus, the trial court rightly
allowed the application.(Para 1 to 20)

B. 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.
It is, however, to be borne in mind that
the discretionary power conferred u/s 311
Cr.PC has to be exercised judiciously.(Para
16)

The application is dismissed. (E-6)

List of Cases cited:

1. Raja Ram Prasad Yadav Vs St. of Bih. & anr.,
(2013) AIR SC 3081

2. R.B. Mithani Vs St. of Mah. (1971) AIR
SC1630

3. St. of Har. Vs Ram Prasad (2006) Cr.L.J. 1001

4. Shailendra Kumar Vs St. of Bih. (2002) SC
270

5. Ramasami Vs Sriniwasan (1987) 3 Crimes 89
Madras

6. Rama Paswan Vs St. of Jharkhand (2007) Crl.
L.J. 2750

7. Popat Lal & ors. Vs St. of Mah. (2002) Crl L.J.
794

8. V.N. Patil Vs Niranjan Kumar & ors. (2021) 3
SCC 661

9. Bhagwan Singh Vs St. of M.P. (2002) 44 ACC
1112 SC

10. Raj Kishor Jha Vs St. of Bih. (2003) 47 ACC
1068 SC

11. Chittarlal Vs St. of Raj. (2003) 6 SCC 397
408 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Shri Bhagwan Vs St. of Raj. (2001) 6 SCC
296

13. Satnam Singh Vs St. of Raj. (2000) 1 SCC
662
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This application has been made by
the accused applicant to quash the order
dated 31/10/2008 passed by Additional
Sessions Judge, Court No. 02, Shahjanpur
in S.T. No. 799 of 2007 - State Vs. Harish
Chandra and others, under Sections 304,
323 and 504 IPC. Police Station Pobayan,
District Shahjahanpur, by which the learned
Trial Court allowed the Application 13-B
U/s 311 Cr.PC and summoned Maina Devi
and Usha Devi as witnesses.

2. Heard Sri Pawan Kumar Dubey,
learned counsel for the applicants, Sri
Pankaj Kumar Tripathi, learned A.G.A for
the State and perused the record.

3. In brief, facts of the case are that
complainant Ramesh Chandra lodged NCR
No. 62 of 2007; against Harish Chandra,
Matadeen, Sangam and ram Kumar and
after death of injured Pankaj, the NCR was
converted into FIR U/s 304, 323 and 504
IPC. IO recorded the statements of the
informant and so called eye witness Babu
Ram and after investigation submitted
Charge sheet against the applicant under
the aforesaid sections on 05/05/2007. from
the bare perusal of the charge sheet it is
crystal clear that the statement of the Maina
Devi and Smt Usha Devi were neither
recorded U/S 161 Cr.P.C nor a single word
is mentioned in the case diary regarding
their presence at the alleged place of
incident that's why their name have not
been mentioned in the list of witnesses.
During the trial statements of PW1 Ramesh
Chandra, PW-2 Babu Ram and PW-3
Sukhlal have been recorded.

4. On 06/05/2008 both the proposed
witnesses moved an application U/s 311
Cr.PC
before
ASJ
Court
no.
02
Shahjahanpur with the prayer that on
02/04/2007 at the time of the incident they
were with Pankaj and they received injuries
during the course of saving the deceased,
they are the injured eye witnesses and were
medically examined on 05/04/2007 in
PHC. Original injury reports had been
taken by the police. They are annexing its
photocopies. Police did not made them
(injured) witness under the connivance of
the
accused
persons.
Accused
are
influential persons who have got all the
witnesses hostile. Therefore for the just
decision of the case the applicants be
summoned as witness.

5. An objection was invited and
considered and thereafter by the impugned
order, application 13-B has been allowed
by the trial court concluding that there is
injury report in support of the application
under section 311 CrPC. For just decision
of the case any witness can be examined or
re-examined at any stage U/s 311 CrPC and
any person can be summoned for evidence.

6. Learned ASJ has wrongly and
illegally allowed the application and
summoned them as witness which is highly
unjust, improper and against the correct
provision of the law. Hence, the application
be allowed and the impugned order be
quashed.

7. For Connivance section 311 CrPC
is produced as under :-

"Section 311 in The Code Of
Criminal Procedure, 1973.
4 All. Harish Chandra & Ors. Vs. State of U.P. & Anr.
409

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."

8. From the above, it is very much
clear that there are two part of this Section.
According to first part of the Section, the
Court can exercise the power :-

(1) to summon any person as a
witness, or.

(2) to examine any persons in
attendance, though not summoned as a
witness, or,

(3) to recall and re-examine any
person already examined.

The second part, which is mandatory
and imposes an obligation on the Court:-

(1) to summon and examine, or

(2) to recall and re-examine any such
person, if his evidence appears to be
essential to the just decision of the case.

9. In Raja Ram Prasad Yadav Vs.
State of Bihar and Anr. A.I.R 2013 (SC)
3081, it has been held that it is, therefore
imperative that invocation of Section 311
Cr.P.C and its application in a particular
case can be ordered by the Court, only by
bearing in mind the object and purport of
the said provisions, namely, for achieving a
just decision of the case. The power vested
under the said provisions is made available
to any court at any stage in any inquiry or
trial or other proceedings initiated under
the code for the purpose of summoning any
person as a witness or for examining any
persons in attendance, even though not
summoned as witnesses or to re-call or reexamine any person in attendance. In so far
as recalling and re-examining of any person
already
examined,
the
court
must
necessarily consider and ensure that such
re-call and re-examination of any person,
appears in the view of the court to be
essential for the just decision of the case.

10. In R.B. Mithani Vs. State of
Maharashtra, A.I.R. 1971, Supreme Court
1630, the Hon'ble Supreme Court has held
that additional evidence summoned must be
necessary not because, it would be
impossible to pronounce judgement but
also because there would be failure of
justice without it. Though the power must
be exercised sparingly and only in suitable
case but once such action is justified, there
is no restriction on the kinds of evidence,
which may be received. It may be formal or
substantial in nature.

11. In State of Haryana Vs. Ram
Prasad 2006 Cr.L.J. 1001, the Punjab &
Haryana High Court held that where the
examination and re-examination of the
witness is essential for the just decision of
the case, it is obligatory of the Court to
summon such a witness.

12. In Shailendra Kumar Vs. State of
Bihar, A.I.R 2002 (Supreme Court) 270, it
is held that if there is any negligence,
latches or mistake by not examining
material witness, the Courts function to
render just decision by examining such
witness at any stage is not, in any way
impaired.

13. In Ramasami Vs. Sriniwasan
1987 (3) Crimes 89 Madras, it is held that
the criminal court is not just umpire to deal
only the material brought by the parties
before it. The court has to play an active
410 INDIAN LAW REPORTS ALLAHABAD SERIES
role in the administration of criminal
jurisprudence. Though, it is not normal
duty of the court to collect evidence, in
cases where justice requires, the Court has
power to further inquire into the matter in
order to ascertain the truth.

14. In Rama Paswan Vs. State of
Jhharkhand, 2007 Crl. L.J. 2750, the
Hon'ble Supreme Court has held that it
would not be improper, the exercise of the
power 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, inquiries and
trials under the Court and empowers the
Magistrate to issue summons to any
witness at any stage of such proceedings,
trial or inquiry.

15. The applicant-accused is of the
view that by allowing the application under
Section 311 Cr.P.C and by summoning the
witnesses and keeping the documentary
evidence on record, the accused-applicant
have been prejudiced. In this respect in
Popat
Lal
&
Ors.
Vs.
State
of
Maharashtra, 2002, Crl.L.J. 794, the
Bombay High Court has held that Section
311 Cr.P.C. is not granted only for the
benefit of the accused and it will not be
improper exercise of power of the Court, if
the Court summons a witness only because
the evidence will support the prosecution
case and not the defence case.

16. In averment of para 14 to 17 in
V.N Patil Vs. Niranjan Kumar and others,
(2021) 3 SCC 661; are relevant hence they
are reproduced as under :-

"14. 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".

15. The principles related to the
exercise of the power under Section 311
CrPC have been well settled by this Court
in Vijay Kumar v. State of U.P., (2011) 8
SCC 136 : (2011) 3 SCC (Cri) 371 : (2012)
1 SCC (L&S) 240 : (SCC p. 141, para 17)

"17. Though Section 311 confers 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 the Code
and the principles of criminal law. The
discretionary
power
conferred
under
Section 311 has to be exercised judicially
for reasons stated by the court and not
arbitrarily or capriciously. Before directing
the learned Special Judge to examine Smt
Ruchi Saxena as a court witness, the High
Court did not examine the reasons assigned
by the learned Special Judge as to why it
was not necessary to examine her as a
court witness and has given the impugned
direction without assigning any reason."

16. This principle has been further
reiterated in Mannan Shaikh v. State of
W.B., (2014) 13 SCC 59 : (2014) 5 SCC
(Cri) 547 and thereafter in Ratanlal v.
Prahlad Jat, (2017) 9 SCC 340 : (2017) 3
4 All. Harish Chandra & Ors. Vs. State of U.P. & Anr.
411
SCC (Cri) 729 and Swapan Kumar
Chatterjee v. CBI, (2019) 14 SCC 328 :
(2019) 4 SCC (Cri) 839 . The relevant
paragraphs of Swapan Kumar Chatterjee v.
CBI, (2019) 14 SCC 328 : (2019) 4 SCC
(Cri) 839 are as under: Swapan Kumar
Chatterjee v. CBI, (2019) 14 SCC 328 :
(2019) 4 SCC (Cri) 839, SCC p. 331, paras
10-11)

"10. The first part of this section
which
is
permissive
gives
purely
discretionary authority to the criminal
court and enables it at any stage of inquiry,
trial or other proceedings under the Code
to act in one of the three ways, namely, (i)
to summon any person as a witness; or (ii)
to examine any person in attendance,
though not summoned as a witness; or (iii)
to recall and re-examine any person
already examined. The second part, which
is mandatory, imposes an obligation on the
court (i) to summon and examine, or (ii) to
recall and re-examine any such person if
his evidence appears to be essential to the
just decision of the case.

11. It is well settled that the power
conferred under Section 311 should be
invoked by the court only to meet the ends
of justice. The power is to be exercised only
for strong and valid reasons and it should
be exercised with great caution and
circumspection. The court has vide power
under this section to even recall witnesses
for re-examination or further examination,
necessary in the interest of justice, but the
same has to be exercised after taking into
consideration the facts and circumstances
of each case. The power under this
provision shall not be exercised if the court
is of the view that the application has been
filed as an abuse of the process of law."

17. The aim of every court is to
discover the truth. Section 311 CrPC is one
of many such provisions which strengthen
the arms of a court in its effort to unearth
the truth by procedure sanctioned by law.
At the same time, the discretionary power
vested under Section 311 CrPC has to be
exercised judiciously for strong and valid
reasons
and
with
caution
and
circumspection to meet the ends of justice.

In the aforesaid case, the appeal was
allowed by the apex court and the order of
High Court was set aside and order of the
trial court regarding summoning of the
witnesses and production of document was
restored.

17. Mentioning the name of all
witnesses in FIR or in statements u/s 161
CrPC is not a requirement of law. Such
witnesses can also be examined by
prosecution with the permission of the
court. Non-mentioning of the name of any
witness in the FIR would not justify
rejection of evidence of the eye-witness. In
para 13 of Bhagwan Singh Vs. State of
M.P, 2002 (44) ACC 1112 (SC) it was held
that that there is no requirement of law for
mentioning the names of all the witnesses
in the FIR, the object of which is only to set
the criminal law in motion. In the cited case
Kiran (PW 7) herself was injured and being
the niece of Hari Ram (deceased), had no
reason to involve innocent persons in the
commission of the crime.

Instead of the above citation in Raj
Kishor Jha Vs. State of Bihar, 2003 (47)
ACC 1068 (SC), Chittarlal Vs. State of
Rajasthan, (2003) 6 SCC 397, Shri
Bhagwan Vs. State of Rajasthan, (2001) 6
SCC 296, Satnam Singh Vs. State of
Rajasthan, (2000) 1 SCC 662, the apex
court has held similar principles of law.

18. The trial court has ample power to
summon any person as witness for the just
decision of the case. In this case when
according to the proposed witnesses they
412 INDIAN LAW REPORTS ALLAHABAD SERIES
had received injuries with the deceased on
and at the time of the incident and they had
also been medically examined even then
their statements had not been recorded by
the IO and in spite of getting their medical
report, the same has not been annexed with
the charge sheet and when there is serious
allegation against the IO that he was under
the connivance with the accused persons
that's why they (the alleged injured eye
witnesses) had not been mentioned as
witnesses to weaken the prosecution case,
this court is of the view that in the aforesaid
circumstances it was bounden duty of the
court to summon and examine the aforesaid
witnesses. In the aforesaid circumstances
the trail court has rightly allowed the
application and ordered to examine the
applicants for just decision of the case.

19. Thus, it cannot be said that by
passing such order the trial court is trying
to fill up the lacuna of the prosecution. The
impugned order is based on sound and
cogent reason. The applicants could not
establish any ground on which basis this
court may exercise its inherent jurisdiction
as the impugned order is not the abuse of
the process of the court. Hence the
application is liable to be rejected.

O R D E R

20. The application u/s 482 Cr.P.C is
accordingly dismissed.

Let the copy of this judgement be sent
to the court concerned.
----------
(2023) 4 ILRA 412
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 34664 of 2022

Saurabh ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Ms. Manju Pandey

Counsel for the Opp. Parties:
G.A., Sri M.P.S. Chauhan

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code,1860 - Sections 363, 366& 376
& 3⁄4 POCSO Act, 2012-Quashing of
Chargesheet as well as Cognizance ordervictim being minor girl cannot give her
consent with regard to conversion of her
religion-if
a
physical
relation

is
established with or without consent of girl
below the age of 18 years, it would not be
a valid consent-More so, there is no record
of the proceedings of Habeas Corpus Writ
Petition to strengthen the version of the
applicant that the victim had stated in
favour of the applicant in High CourtTherefore, it may be said that such person
had been kidnapped from her lawful
guardianship-Hence, the ongoing criminal
proceedings cannot be concluded the
abuse of process of court.(Para 1 to 16)

The application is rejected. (E-6)
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Learned A.G.A has filed counter
affidavit in Court, which is taken on record.

2. No rejoinder affidavit has been
filed by the applicant.

3. Heard Ms. Manju Pandey, learned
counsel for the applicant, Sri M.P.S.
Chauhan, learned counsel for opposite
party no. 2 and Sri Pankaj Kumar Tripathi,