# Indradev Seth v. State of U.P. & Anr

- **Citation:** Application U/S 482 Cr.P.C. No. 3015 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-02-10
- **Case number:** Application U/S 482 Cr.P.C. No. 3015 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indradev-seth-v-state-of-u-p-anr-46361
- **Pages:** 5

## Headnote

(A) Criminal Law-Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Section 498A, 304B, 201
I.P.C. read with Section 3/4 of D.P.
Act - Section 311 of Cr.P.C. - provides
power to trial Judge for summoning
any of the witness being needed for
the just decision of case before
delivery of judgement at any stage of
any inquiry, trial or other proceeding
- trial Judge was justified in passing
impugned order. (Para - 6)

Trial Court, summoned two witnesses under
Section 311 of Cr.P.C. - no such argument
was ever raised either by prosecution or by
defence side - nor those witnesses were
necessary for their evidence - Court became
bias, after filing of a written argument by
defence side - Then after for deferring
delivery of judgment, this impugned order
has been passed.(Para -3)

HELD:- Just and proper decision is to be
seen by trial Court for summoning any
witness, under Section 311 of Cr.P.C. Court
may summon, upon motion moved by either
1560 INDIAN LAW REPORTS ALLAHABAD SERIES
side or by suo moto, if it finds it necessary.
(Para-9)

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

List Of Cases Cited:-

## Text

3-5 All. Indradev Seth Vs. Sate of U.P. & Anr.
1559
Rajiv Thapar (supra), the application is
allowed and the impugned charge sheet
dated 10.02.2019 in F.I.R. No. 260 of 2018
and its consequential summoning order
dated 13.02.2019 passed by ACJM-I, Court
No. 25, Lucknow are set aside.

48. However, before parting with the
judgment, it is hereby observed that since it is
evident from the record that the owner of the
vehicle nos. UP32 HN 3209 and UP32 FN
8048 stated that the vehicles were standing in
his yard, meaning thereby, either the owner is a
falsehood or the service provider of the vehicles
to the Company is plying illegal vehicles on the
aforesaid numbers, which is a matter of
investigation.

49. In such circumstances, it is directed
that the investigation of Case Crime No. 227 of
2019 under Sections 406, 420 I.P.C., P.S.
Banthara, District Lucknow (old no. 390 of
2018, under Sections 406, 420 I.P.C., P.S.
Badalpur, District Gautam Budh Nagar) be
transferred
to
C.B.C.I.D.
forthwith.
Commissioner of Police, Lucknow is directed
to pass necessary orders for handing over all the
necessary documents to the office of Director
General of C.B.C.I.D., who, in turn, is directed
to depute some competent officer not below the
rank of Deputy Inspector General of Police to
monitor the further investigation of the
aforesaid case on weekly basis and conclude the
same as early as possible, strictly in accordance
with law.

50. Photocopy of both the case diaries are
returned back to the learned A.A.G.

51. Office is directed to communicate this
order to the Chief Judicial Magistrate, Lucknow
as well as Additional Chief Secretary (Home),
Director General (Police), U.P., Director
General, C.B.C.I.D. and Police Commissioner,
Lucknow for necessary compliance.
----------
(2020)03-05ILR A1559
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 Cr.P.C. No. 3015 of 2020

Indradev Seth ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Seema Mishra

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

(A) Criminal Law-Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Section 498A, 304B, 201
I.P.C. read with Section 3/4 of D.P.
Act - Section 311 of Cr.P.C. - provides
power to trial Judge for summoning
any of the witness being needed for
the just decision of case before
delivery of judgement at any stage of
any inquiry, trial or other proceeding
- trial Judge was justified in passing
impugned order. (Para - 6)

Trial Court, summoned two witnesses under
Section 311 of Cr.P.C. - no such argument
was ever raised either by prosecution or by
defence side - nor those witnesses were
necessary for their evidence - Court became
bias, after filing of a written argument by
defence side - Then after for deferring
delivery of judgment, this impugned order
has been passed.(Para -3)

HELD:- Just and proper decision is to be
seen by trial Court for summoning any
witness, under Section 311 of Cr.P.C. Court
may summon, upon motion moved by either
1560 INDIAN LAW REPORTS ALLAHABAD SERIES
side or by suo moto, if it finds it necessary.
(Para-9)

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

List Of Cases Cited:-

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

2. Mohanlal Shamji Soni vs U.O.I. And Another,
1991 CriLJ 1521

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. The applicant Indradev Seth, by
means of this application under Section 482
Cr.P.C.,
has
invoked
the
inherent
jurisdiction of the Court with prayer to
quash
the
summoning
order
dated
21.11.2019, passed by learned Additional
Session Judge, Fast Track Court- I,
Mirzapur, in S.T. No. 43 of 2016 (State of
U.P. Vs. Suraj Seth and others), under
Section 498A, 304B, 201 I.P.C. read with
Section 3/4 of D.P. Act, Police Station-
Ahrora, District- Mirzapur, pending before
the Court of learned Additional Session
Judge, Fast Track Court- I, Mirzapur.

2. Heard learned counsel for the
applicant and learned A.G.A. for the State.

3. Learned counsel for the applicant
argued
that
file
was
scheduled
for
judgement but trial Court, vide impugned
order, summoned two witnesses under
Section 311 of Cr.P.C., whereas no such
argument was ever raised either by
prosecution or by defence side nor those
witnesses
were
necessary
for
their
evidence. Rather, Court became bias, after
filing of a written argument by defence side
and this argument was gone through by the
Presiding Judge. But no where this was
mentioned in order-sheet that this argument
was filed. Then after for deferring delivery
of judgment, this impugned order has been
passed. Many other arguments regarding
facts of case, were argued but the same are
not concerned with disposal of present
matter, in issue. Hence, need not to be
mentioned.

4. Learned AGA has vehemently
opposed the above prayer.

5. The sole question is whether trial
Judge was justified in passing impugned
order or not.

6. No doubt Section 311 of Cr.P.C.,
provides
power
to
trial
Judge
for
summoning any of the witness being
needed for the just decision of case before
delivery of judgement at any stage.

7. Section 311 Cr.P.C. provides
"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. It is crystal clear that the Court is
empowered to summon any person as
witness, at any stage of any inquiry, trial or
other proceeding. The power is not
confined to any particular class or person.
It is settled law that if the conditions under
this Section is satisfied, the Court can call a
witness not only on the motion of either of
the prosecution or defence but also it can
3-5 All. Indradev Seth Vs. Sate of U.P. & Anr.
1561
do so on its own motion. Any person can
be summoned as a witness or recalled or reexamined at any stage of proceeding, where
those ingredients is present and this has
been propounded by Apex Court in
Mohanlal Shamji Soni vs Union Of India
And Another, 1991 CriLJ 1521. Learned
counsel for the applicant has pressed law of
Apex Court in Raja Ram Prasad Yadav
Vs. State of Bihar and another, AIR 2013
SC 3081, where this power of trial court to
summon, recall or re-examine any person,
has been stated as follows:

(B) Criminal P.C. (2 of 1974), S.
311 - Power of Court to summon, recall or
re-examine any person - Exercise of -
Governing principles.

While dealing with an application
under Section 311 Cr.P.C. read along with
Section 138 of the Evidence Act, we feel the
following principles will have to be borne
in mind by the Courts:

a) Whether the Court is right in
thinking that the new evidence is needed by
it? Whether the evidence sought to be led in
under Section 311 is noted by the Court for
a just decision of a case?

b) The exercise of the widest
discretionary power under Section 311
Cr.P.C. should ensure that the judgment
should not be rendered on inchoate,
inconclusive speculative presentation of
facts, as thereby the ends of justice would
be defeated.

c) If evidence of any witness
appears to the Court to be essential to the
just decision of the case, it is the power of
the Court to summon and examine or recall
and re-examine any such person.

d) The exercise of power under
Section 311 Cr.P.C. should be resorted to
only with the object of finding out the truth
or obtaining proper proof for such facts,
which will lead to a just and correct
decision of the case.

e) The exercise of the said power
cannot be dubbed as filling in a lacuna in a
prosecution case, unless the facts and
circumstances of the case make it apparent
that the exercise of power by the Court
would result in causing serious prejudice to
the accused, resulting in miscarriage of
justice.

f) The wide discretionary power
should be exercised judiciously and not
arbitrarily.

g) The Court must satisfy itself
that it was in every respect essential to
examine such a witness or to recall him for
further examination in order to arrive at a
just decision of the case.

h) The object of Section 311
Cr.P.C. simultaneously imposes a duty on
the Court to determine the truth and to
render a just decision.

i) The Court arrives at the
conclusion that additional evidence is
necessary, not because it would be
impossible to pronounce the judgment
without it, but because there would be a
failure of justice without such evidence
being considered.

j) Exigency of the situation, fair
play and good sense should be the safe
guard, while exercising the discretion. The
Court should bear in mind that no party in
a trial can be foreclosed from correcting
errors and that if proper evidence was not
adduced or a relevant material was not
brought on record due to any inadvertence,
the Court should be magnanimous in
permitting such mistakes to be rectified.

k) The Court should be conscious
of the position that after all the trial is
basically for the prisoners and the Court
should afford an opportunity to them in the
fairest manner possible. In that parity of
reasoning, it would be safe to err in favour
1562 INDIAN LAW REPORTS ALLAHABAD SERIES
of the accused getting an opportunity
rather than protecting the prosecution
against possible prejudice at the cost of the
accused. The Court should bear in mind
that improper or capricious exercise of
such a discretionary power, may lead to
undesirable results.

l) The additional evidence must
not be received as a disguise or to change
the nature of the case against any of the
party.

m) The power must be exercised
keeping in mind that the evidence that is
likely to be tendered, would be germane to
the issue involved and also ensure that an
opportunity of rebuttal is given to the other
party.

n) The power under Section 311
Cr.P.C. 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 care, caution
and circumspection. The Court should bear
in mind that fair trial entails the interest of
the accused, the victim and the society and,
therefore, the grant of fair and proper
opportunities to the persons concerned,
must be ensured being a constitutional
goal, as well as a human right.

9. Meaning thereby, just and proper
decision is to be seen by trial Court for
summoning any witness, under Section 311
of Cr.P.C. Court may summon, upon
motion moved by either side or by suo
moto, if it finds it necessary. Now in case in
hand, it has been written in First
Information Report that information of
alleged
disease
of
deceased
was
communicated to informant by some
Mohan Seth. Subsequently, this Mohan
Seth apprised that deceased had died. Now
Mohan Seth was shown as a witness but
prosecution not examined this witness. This
was a plea by defence that no such
occurrence ever occurred. Rather it was a
natural death, owing to ailment, for which
deceased was being taken for her treatment.
Meaning thereby, the bona fide of accused
that he communicated one relative of
informant about disease of deceased and he
communicated instantly to informant about
this ailment of deceased, is a crucial point
and if Mohan Seth proves it that he had
been informed by accused side that
deceased was under ailment and was taken
for treatment, then it will prove the bona
fide
of
accused
persons,
that
will
substantiate
the
plea
of
defence.
Subsequently, information of death, being
said to be given to Mohan Seth and
communicated to informant by Mohan
Seth, is also of that much crucial nature.
Hence, Mohan Seth was an important
witness to be examined before trial Court
for appreciation of this aspect that accused
persons did informed Mohan Seth about
disease of deceased and she being taken for
treatment. Hence, trial Judge rightly
concluded for summoning Mohan Seth, for
his examination and this examination will
be helpful for accused himself, in case he
proves so. By examining this witness the
real and just decision will be passed.

10. Regarding other witnesses, driver
of that tempo, by which deceased was said
to be taken to hospital for treatment and if
it is so and proved on record, then, bona
fide of accused persons and plea of
defence, will be substantiated. Either
prosecution or defence itself ought to
examine these witnesses, for fortifying
their plea and placing their bona fide but
unfortunately these witnesses are not
examined and for reaching correct and just
decision in judicial decision making, their
evidence was must and in course with
guidelines given by Apex Court, narrated
as above. Accordingly, there is nothing
3-5 All. Iqbal Ahmad Vs. State of U.P. & Anr.
1563
wrong in the impugned order. This
application merits its dismissal.

11. Dismissed, as such.
----------
(2020)03-05ILR A1563
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.02.2020

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 Cr.P.C. No. 3068 of 2020

Iqbal Ahmad ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Gaurav Kakkar, Sri Pravin Kumar Mishra

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

(A)
Criminal
Law-
The
Negotiable
instruments Act, 1981 - Section 138 -
Section 391 (1)- Cr.P.C.Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Section 243 Cr.P.C.
- Evidence for defence - Section 391
Cr.P.C. - Appellate court may take further
evidence or direct it to be taken - -
appellate court is entitled to take
additional evidence, only if it thinks,
additional evidence to be necessary - it
depends on facts of each and every case
to come to a conclusion as to whether it
is 'necessary' to take additional evidence
or not. (Para-12)

Complaint filed against the applicant - Section 138 of
the Negotiable Instruments Act - application moved
by the applicant before the trial court & concerned
bank - with respect to loss of cheque - cheque in
question dishonored with the endorsement
"insufficient fund" and not with the endorsement
"mismatch of signature" - For the first time, the
applicant claimed before the appellate court through
application under section 391 Cr.P.C. that the cheque
did not bear his signature and disputed cheque be
got examined by hand writing expert - despite ample
opportunity given during trial to get admitted
signatures compared with the disputed signature on
the cheque - no such prayer was made. (Para-16)

HELD:-The applicant did not want to file any
additional evidence but wanted to create new
evidence merely on the ground that the disputed
cheque does not bear his signatures . Application
under Section 391 Cr.P.C. filed by the applicant
before the Appellate court was not bonafide and was
simply moved to create confusion and delay in
disposal of appeal and the application has been
rightly rejected by learned Additional District and
Sessions Judge.(Para -13, 17)

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

List Of Cases Cited:-

1. Rambhau and Another Vs. St. of Mah.,
(2001) 4 SCC 759

2. Kalyani Baskar vs. M.S. Sampornam ,
2006 0 Supreme(SC) 1109

3. Brig. Sukhjeet Singh (Retd.) MVC vs. St.
of U.P. & ors., , 2019 (3) Supreme 242

(Delivered by Hon'ble Mrs. Manju Rani Chauhan, J.)

1. Supplementary affidavit filed by
the learned counsel for the applicant today
in the Court, which is taken on record.

2. Heard Mr. Pravin Kumar Mishra,
learned counsel for the applicant, Mr. P.K.
Shahi, learned A.G.A. for the State and
perused the record.

3. This application under Section 482
Cr.P.C. has been filed by the applicant
seeking to quash the impugned order dated
12.12.2019
passed
by
the
learned