# Madhusudan Shukla v. State of U.P

- **Citation:** (2022) 7 ILRA 481
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-16
- **Case number:** Application U/S 482 No.12409 of 2022
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madhusudan-shukla-v-state-of-u-p-48899
- **Pages:** 8

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 482, 311 - Indian
Penal Code, 1860-Section 364-application
u/s 311 for summoning certain witnesses
was rejected - the same could not be
rejected on the sole ground that the case
had been pending for an inordinate
amount of time-delay in conclusion of the
proceedings should not be the reason for
rejection of an application u/s 311 Cr.P.C.-
In the instant case, the additional witness
who claims himself to be an eye witness of
the incident in his statement u/s 161
Cr.P.C., sought to be summoned for
arriving at the just decision of the case -
Trial court adopted a hyper technical view
in rejecting the application-it has failed to
adhere to the well known adage that
every trial is a voyage in which quest for
truth is the goal.(Para 1 to 16)

B. The power conferred u/s 311 Cr.P.C. is
to be invoked by the court to meet the
ends of justice, for strong and valid
reasons and it is to be exercised with
great caution and circumspection. The
determinative factor in this regard should
be whether the summoning or recalling of
the witness is in fact, essential to the just
decision of the case keeping in view that
fair trial-which entails the interests of the
accused, the victim and of the society-is
the main object of the criminal procedure
and the court is to ensure that such
fairness is not hampered or threatened in
any manner.(Para 9 to 11)

The application is allowed. (E-6)
List of Cases cited:

## Text

7 All. Madhusudan Shukla Vs. State of U.P.
481
order of the Hon'ble Supreme Court in the
case of Satendra Kumar Antil Vs.
Central Bureau of Investigation and
another58 and the requisite conditions
specified therein also stand fulfilled and in
view of the same, a direction may be issued
to the court below to consider the grant of
bail.

59. Learned A.G.A.-I appearing for
the State opposite party has no objection to
the prayer so made.

60. Counsel for the applicants states
that the applicants would submit to the
jurisdiction of the court below and apply
for bail.

61. In case any such application is
moved the court below would be expected
to pass appropriate orders thereon in
accordance with the settled principles of
law.

62. The application stands disposed of
accordingly.
----------
(2022)07ILR A481
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.06.2022

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Application U/S 482 No.12409 of 2022

Madhusudan Shukla ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Bipin Kumar Tripathi, Sri V.P. Srivastava
(Senior Adv.)

Counsel for the Opposite Party:
G.A., Sri Vijendra Kumar Mishra

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 482, 311 - Indian
Penal Code, 1860-Section 364-application
u/s 311 for summoning certain witnesses
was rejected - the same could not be
rejected on the sole ground that the case
had been pending for an inordinate
amount of time-delay in conclusion of the
proceedings should not be the reason for
rejection of an application u/s 311 Cr.P.C.-
In the instant case, the additional witness
who claims himself to be an eye witness of
the incident in his statement u/s 161
Cr.P.C., sought to be summoned for
arriving at the just decision of the case -
Trial court adopted a hyper technical view
in rejecting the application-it has failed to
adhere to the well known adage that
every trial is a voyage in which quest for
truth is the goal.(Para 1 to 16)

B. The power conferred u/s 311 Cr.P.C. is
to be invoked by the court to meet the
ends of justice, for strong and valid
reasons and it is to be exercised with
great caution and circumspection. The
determinative factor in this regard should
be whether the summoning or recalling of
the witness is in fact, essential to the just
decision of the case keeping in view that
fair trial-which entails the interests of the
accused, the victim and of the society-is
the main object of the criminal procedure
and the court is to ensure that such
fairness is not hampered or threatened in
any manner.(Para 9 to 11)

The application is allowed. (E-6)
List of Cases cited:

1. Rajaram Prasad Yadav Vs St. of Bih. & ors.
(2013) 14 SCC 461

2. The St. reptd. by DSP Vs N. Seenivsagan
(2021) AIR SC 2441

3. Manju Devi Vs St. of Raj. (2019) 6 SCC 203

4. Natasha Singh Vs C.B.I. (2013) 5 SCC 741
482 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. This is a petition under Section 482
Cr.P.C. against the order dated 29.04.2022
by virtue of which the application of the
applicant under section 311 Cr.P.C. for
summoning certain witnesses was rejected.

2. Heard Sri V. P. Srivastava, learned
Senior Advocate assisted by Sri Bipin
Kumar Tripathi, learned counsel for the
applicant, Mr Vijendra Kumar Mishra,
learned counsel for the opposite party no. 2
and Mr L. M. Singh, learned AGA for the
State.

3. In short, facts giving rise to present
case are that an FIR vide Case Crime No.
1052 of 1996, under Section 364 IPC was
lodged on 19.10.1996 by the informant
against the applicant and three others
alleging therein that on 18.10.1996 at about
7 p.m. elder brother of the informant along
with
one
Sanjay
Rai
were
going
Girdharganj to buy vegetables; at that time
applicant and other named accused persons
came in a jeep and took away brother of the
informant with them and when the
informant reached to his house from his
village, Sanjay Rai is said to have narrated
all these facts to the informant. The
informant further apprehends that his
brother has been abducted with intention to
kill him because of old enmity with one coaccused Prajapati Shukla @ Jhanney
Shukla, named in the FIR.

4. Investigation is said to have been
carried out but about one month none of the
prosecution witnesses were examined and
even the statement of informant was not
recorded and as such the investigation was
transferred to CBCID, Gorakhpur on
31.12.1996 by parcha no. 3 and during
course of process of investigation, the
matter was again transferred to CBCID,
Allahabad.
During
pendency
of
investigation,
Investigating
Officer,
CBCID, Gorakhpur submitted charge sheet
against Madhusudan Shukla (applicant) and
Devi Sharan Yadav in the matter on
9.9.1997 under Sections 302, 364, 201/34
IPC and against accused Prajapati Shukla
@ Jhannu Shukla and Girija Shanker
Pandey on 4.11.1997 under Sections 364,
302, 201/34 IPC, whereupon cognizance
was taken by the learned Magistrate.
However, later on, the second Investigating
Officer H. N. Kanojiya, Inspector CBCID,
Allahabad is said to have submitted final
report against the applicant and other co
accused persons. But the Trial Court has
proceeded merely on the basis of the
previous charge sheets, without taking any
notice of the final report submitted by
second Investigating Officer.

5. During course of trial, after
recording of the statement under Section
313 Cr.P.C., an application (163 kha) under
Section 311 Cr.P.C. dated 25.4.2022 was
filed on behalf of the accused applicant to
produce one Sanjay Rai as well as Second
Investigating Officer H. N. Kanjiya,
Inspector CBCID, Allahabad either as
defence witness or court witness for the just
and proper decision of the trial, which has
been rejected by the trial court vide order
dated 29.04.2022 noticing the fact that this
Court, considering it to be one of the oldest
matter, on earlier occasion had already
directed the trial court to conclude the trial
of the matter within six months. It is this
order which is subject matter of challenge
before this Court.

6. Learned counsel for the applicant
has contended that examination of the
witnesses named in the application filed by
7 All. Madhusudan Shukla Vs. State of U.P.
483
the applicant under Section 311 Cr.P.C. is
very essential for the just decision of the
case. It is further submitted that applicant
has been falsely implicated in the present
case, which is based on last seen testimony
and the applicant has no criminal history to
his credit. In support of his arguments, he
relied upon the judgements of Rajaram
Prasa Yadav Vs State of Bihar and
others, reported in 2013 14 SCC 461;
The State represented by the Deputy
Superintendent
of
Police
Vs
N.
Seenivsagan, reported in AIR 2021 SC
2441.

7. On the other hand learned counsel for
the respondent no. 2 and learned AGA for the
State pleading the legality and validity of the
impugned order contended that application
under Section 311 Cr.P.C. moved by the
applicant at the fag end of the trial was
nothing, but a deliberate attempt to delay the
conclusion of the trial. By way of aforesaid
application, applicant wanted to re-open the
entire case, which in law is not permissible.
Even otherwise, application of the applicant
under Section 311 Cr.P.C. was an attempt to
fill up a lacuna.

8. I have carefully considered the
submissions as well as gone through the record.

9. The nature and scope of the powers
to be exercised by the court under Section
311 Cr.P.C. was elaborately considered in
the case of Rajaram Prasad Yadav v
State of Bihar and another (supra) and
after considering the earlier precedents, the
principles to be followed by the courts with
regard to exercise of powers under the said
section
have
been
explained
and
enumerated. It has been stated thus:-

"14. A conspicuous reading of
Section 311 Cr P C would show that widest
of the powers have been invested with the
courts when it comes to the question of
summoning a witness or to recall or reexamine any witness already examined. A
reading of the provision shows that the
expression "any" has been used as a prefix
to
"court",
"inquiry",
"trial",
"other
proceeding", "person as a witness", "person
in attendance though not summoned as a
witness", and "person already examined".
By using the said expression "any" as a
prefix to the various expressions mentioned
above, it is ultimately stated that all that
was required to be satisfied by the court
was only in relation to such evidence that
appears to the court to be essential for the
just decision of the case.

Section 138 of the Evidence Act,
prescribed the order of examination of a
witness in the court. The order of reexamination is also prescribed calling for
such a witness so desired for such reexamination. Therefore, a reading of
Section 311 CrPC and Section 138
Evidence Act, insofar as it comes to the
question of a criminal trial, the order of reexamination at the desire of any person
under Section 138, will have to necessarily
be in consonance with the prescription
contained in Section 311 Cr.P.C. It is,
therefore, imperative that the 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 provision, namely, for
achieving a just decision of the case as
noted by us earlier. The power vested under
the said provision is made available to any
court at any stage in any inquiry or trial or
other proceeding initiated under the Code
for the purpose of summoning any person
as a witness or for examining any person in
attendance, even though not summoned as
witness or to recall or re-examine any
484 INDIAN LAW REPORTS ALLAHABAD SERIES
person
already
examined.
Insofar
as
recalling and re-examination of any person
already
examined,
the
court
must
necessarily consider and ensure that such
recall and re-examination of any person,
appears in the view of the court to be
essential for the just decision of the case.
Therefore, the paramount requirement is
just decision and for that purpose the
essentiality of a person to be recalled and
re-examined has to be ascertained. To put it
differently, while such a widest power is
invested with the court, it is needless to
state that exercise of such power should be
made judicially and also with extreme care
and caution.

x x x

23.
From
a
conspectus
consideration of the above decisions, 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 CrPC
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
safeguard, 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
7 All. Madhusudan Shukla Vs. State of U.P.
485
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
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."

10. In the case of The State
represented
by
the
Deputy
Superintendent of Police (supra), the
Apex Court has held that if it appeared to
the Court that the evidence of a person who
is sought to be recalled is essential to the
just decision of a case, the Court could do
so under Section 311 Cr.P.C. The relevant
extract is as under:-

"13. In our view, having due
regard to the nature and ambit of Section
311 of the Cr.P.C., 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 the 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 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."

11. Thus, the power to summon
material witnesses under Section 311
Cr.P.C. which falls under Chapter XXIV
containing the general provisions as to
inquiries and trials has been held to confer
a very wide power on the courts for
summoning witnesses and accordingly the
discretion conferred is to be exercised
judiciously as wider the power the greater
is the necessity for application of judicial
mind. The power conferred has been held
to be discretionary and is to enable the
court
to
determine
the
truth
after
discovering all relevant facts and obtaining
proper proof thereof to arrive at a just
decision in the case. The power conferred
under Section 311 Cr.P.C. is to be invoked
by the court to meet the ends of justice, for
486 INDIAN LAW REPORTS ALLAHABAD SERIES
strong and valid reasons and it is to be
exercised
with
great
caution
and
circumspection. The determinative factor in
this
regard
should
be
whether
the
summoning or recalling of the witness is in
fact, essential to the just decision of the
case keeping in view that fair trial - which
entails the interests of the accused, the
victim and of the society - is the main
object of the criminal procedure and the
court is to ensure that such fairness is not
hampered or threatened in any manner.

12. In the case of Manju Devi Vs
State of Rajasthan, (2019) 6 SCC 203,
Hon'ble Apex Court had noted that an
application Under Section 311 Cr.P.C
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 "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, Hon. Mr. Justice
Dinesh Maheshwari 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 Code of Criminal
Procedure 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
311 Code of Criminal Procedure and
amplitude of the powers of the court
thereunder have been explained by this
Court in several decisions. In Natasha
Singh Vs 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 Code of Criminal
Procedure 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
Code of Criminal Procedure, 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, Code of Criminal
Procedure 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
7 All. Madhusudan Shukla Vs. State of U.P.
487
must be exercised judiciously and not
capriciously or arbitrarily, as any improper
or capricious exercise of such power may
lead to undesirable results. An application
Under Section 311 Code of Criminal
Procedure 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 311 Code of
Criminal Procedure 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)

13. In the instant case, record
(application 163 Kha) reveals that the
additional witness, namely, Sanjay Rai,
who claims himself to be an eye witness of
the incident in his statement under Section
161 Cr.P.C., sought to be summoned by the
applicant by way of additional evidence,
was cited in the list of witness by both the
Investigating Officers at the time of filing
of the charge sheet and while submitting
final report but he was not produced by the
prosecution side in the trial proceedings.
Whereas the Second witness sought to be
examined is the second Investigating
Officer, who submitted the final report after
thorough investigation and, therefore, their
examination in the trial proceedings are
necessary for arriving at the just decision of
the case, when allegedly the case is based
upon circumstantial evidence.

14. The observation of the trial court
in the impugned order that the applicant, by
moving the application under Section 311
Cr.P.C. belatedly wants to derail the trial,
also to fill up a lacuna and to delay the trial
proceedings and more particularly it has
also noted in the impugned order that
Sessions Trial is pending since 2013, and
evidence under Section 313 Cr.P.C. was
recorded on 12.4.2022 and the case was
fixed on 13.4.2022 for defence evidence
but on that date it has been endorsed by
counsel for the applicant that applicant
does not want to give any defence evidence
and in view thereof the application under
Section 311 Cr.P.C. has been rejected but
the court below has not returned any
finding as to why the evidence of witnesses
sought to be summoned is not necessary.

15. Keeping in view the various
pronouncements, the observations noted by
the Trial Court in the impugned order are not
tenable when the paramount consideration is
"just decision of a case" and also keeping in
view the decision of Apex Court in Manju
488 INDIAN LAW REPORTS ALLAHABAD SERIES
Devi (supra) wherein it has specifically been
held that delay in conclusion of the
proceedings should not be the reason for
rejection of an application under Section 311
Cr.P.C., the order impugned is liable to be
quashed. Moreover, trial Court appears to
have adopted a hyper technical view in
rejecting the application, however, what it
appears to have ignored is the purpose for
which the salutary provisions of Section 311
Cr.P.C. has been incorporated. It has failed to
adhere to the well known adage that every
trial is a voyage in which quest for truth is the
goal. The trial court can summon any witness
even if evidence of both sides is closed. What
is required to be demonstrated is, evidence of
such witness is essential to the just decision
of the case.

16. Accordingly, this application under
Section 482 Cr.P.C. is hereby allowed. The
order of the learned trial Court dated
29.04.2022 is hereby quashed.

17. Court below is directed to fix a
short date for the examination of the
witnesses sought to be summoned by the
applicant and on that date if the applicant
fails to examine the witnesses, court below
shall proceed in the matter without giving any
further opportunity to the applicant to lead his
evidence. Since the records indicate that the
matter is oldest one, the trial Court is directed
to take up the matter on day today basis and
dispose of the trial as early as possible but not
later than six months from the date of receipt
of a copy of this order.
----------
(2022)07ILR A488
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2022

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.
Application U/S 482 No. 13840 of 2022

Vinod & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Pawan Kumar

Counsel for the Opposite Parties:
G.A., Sri Arun Kumar Tripathi

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Sections 323, 504, 506,
325 & 308-Challenge to-charge-sheet-In
the instant case filed application u/s 482
Cr.P.C. without disclosing the fact of filing
other two applications-applicants have
not come with clean hands and tried to
obtain order in their favour by playing
fraud upon the Court-One, who comes to
the court, must come with clean hands
and
no
material
facts
should
be
concealed-the process of the court is
being abused by unscrupulous litigants to
achieve their nefarious design-the judicial
process cannot become an instrument of
oppression or abuse or a means in the
process of the Court to subvert justice-the
applicants have misused the process of
law
by
filing
successive
applications
before this Court suppressing the material
facts and documents and misled the
Court.(Para 1 to 7)

The application is rejected. (E-6)
(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1- Heard Mr. Pawan Kumar, learned
counsel for the applicants, Mr. Arun Kumar
Tripathi,
learned
counsel
for
the
complainant/opposite
party
no.2
and
learned A.G.A. fo

2- By means of this application under
Section 482 Cr.P.C., the applicants have
made a prayer for quashing the impugned