# Mohammad Shahid Siddiqui Revisionist v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 809
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-08
- **Bench:** Anant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-shahid-siddiqui-revisionist-v-state-of-u-p-ors-45700
- **Pages:** 5

## Headnote

Government Advocate, Arun Sinha, Rohit
Kumar, Siddharth Sinha

A.
Criminal
Procedure
Code,
1973-
Section 311 - Relevant consideration for
exercise of power - While deciding
application u/s 311 court ought to record
- whether the presence of the witness is
essential for the due disposal of the trial
or not.

Complainant application u/s 311 Cr.P.C rejected
by non-speaking order - No finding recorded by
trial as to whether the presence of the witness
is essential for the due disposal of the trial or
not - Held - Merely giving the finding that the
prosecution is trying to fill up the lacuna, does
not absolve the trial court from its responsibility
as bestowed under Section 311 Cr.P.C. - Order
set aside & matter remanded back to the trial
court for disposing application under Section
311 Cr.P.C afresh

Criminal Revision allowed. (E-5)

List of cases cited: -

## Text

1 All. Mohammad Shahid Siddiqui Vs. State of U.P. & Ors.
809
Case Crime No. 223 of 2002, under
Section 376 IPC, PS Raya, district
Mathura do not call for any interference by
this Court. Accordingly the appeal is
dismissed.

The appellant is in jail. He shall
remain in jail to serve the sentence
awarded to him by the learned Trial Court.

Let a copy of the judgement be
sent along with the lower Court record to
the
Court
below
immediately
for
compliance and necessary entry be made
in the relevant register.

Judgement be certified and be
placed on record.
----------
(2020)1ILR 809

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.01.2020

BEFORE
THE HON'BLE ANANT KUMAR, J.

Criminal Revision No. 456 OF 2018

Mohammad Shahid Siddiqui ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Nadeem Murtaza

Counsel for the Opposite Parties:
Government Advocate, Arun Sinha, Rohit
Kumar, Siddharth Sinha

A.
Criminal
Procedure
Code,
1973-
Section 311 - Relevant consideration for
exercise of power - While deciding
application u/s 311 court ought to record
- whether the presence of the witness is
essential for the due disposal of the trial
or not.

Complainant application u/s 311 Cr.P.C rejected
by non-speaking order - No finding recorded by
trial as to whether the presence of the witness
is essential for the due disposal of the trial or
not - Held - Merely giving the finding that the
prosecution is trying to fill up the lacuna, does
not absolve the trial court from its responsibility
as bestowed under Section 311 Cr.P.C. - Order
set aside & matter remanded back to the trial
court for disposing application under Section
311 Cr.P.C afresh

Criminal Revision allowed. (E-5)

List of cases cited: -

1. Manju Devi Vs St. of Raj & anr (2019) 6 SCC
203

2. Ratanlal Vs Prahlad Jat & ors (2017) 9 SCC
340

(Delivered by Hon'ble Anant Kumar, J.)

1. When the case is taken up in the
revised list, learned counsel for the
revisionist, learned A.G.A. for the State
and Mr. Rohit Kumar, for opposite party
no.2 are present. None present for the
opposite party no.3.

2. Heard learned learned counsel for
the revisionist, learned A.G.A. for the
State as well as learned counsel for
opposite party no.2 Shri Rohit Kumar and
perused the record.

3. This criminal revision under
Section 397/401 Cr.P.C. has been filed for
quashing of the order dated 26.04.2018,
passed by the Sessions Judge, Raebareli in
Sessions Trial No.429 of 2015 (State Vs.
Shailendra Singh another), arising out of
Case Crime No.183 of 2015, under Section
302 IPC, whereby the application under
Section 311 Cr.P.C. filed by the revisionist
has been rejected by the learned trial court.

4. It is submitted by learned counsel
for the revisionist that the revisionist is the
complainant in the case Crime No.183 of
810 INDIAN LAW REPORTS ALLAHABAD SERIES
2015, Police Station Colonelganj, District
Allahabad, under Section 302 IPC and on
his complaint the case was initiated which
was registered as S.T. No. 429 of 2015.
During the course of trial, after conclusion
of the prosecution evidence, an application
under Section 311 Cr.P.C. was moved by
the complainant with the signature of the
ADGC (Criminal) that Mohd. Asad is an
important witness in the case and he
should be summoned to give evidence in
the interest of justice. The said application
was opposed by the defence on the ground
that prosecution wants to fill the lacuna.
The witness Mohd. Asad was not present
on the spot when the incident had taken
place. In this case PW 1 Mohd. Shahid and
PW 2 Mohd.Nafis Ahmad were examined
and both the witnesses have not stated
about the presence of this witness Mohd.
Asad. After hearing the parties, learned
Sessions Judge, Raebareli has taken a view
that since the witness was not present on
the spot as per assertion of PW 1 and PW
2 and the prosecution cannot be permitted
to fill the lacuna by adducing additional
evidence and this witness was not
mentioned in the charge-sheet, so this
witness is not an important witness for just
decision in this case, so the application
under Section 311 Cr.P.C. was rejected.
Hence, this revision has been filed.

5. Learned counsel for the revisionist
has submitted that infact the occurrence
had taken place on 11.03.2015. The
witness
Mohd.Asad
had
given
an
application before the Chief Judicial
Magistrate, Allahabad along with an
affidavit on 05.06.2015 and the Chief
Judicial Magistrate, Allahabad vide order
dated 05.06.2015 itself had sent that
affidavit for proper disposal to the
Investigating Officer and the Investigating
Officer on 05.06.2015 had received the
same but inspite of that the Investigating
Officer did not care to record the statement
of witness Mohd. Asad and veracity of the
said witness so far as its worth pertaining
to the case and the Investigating Officer
constantly sat over the matter.

6. It is further submitted by learned
counsel for the revisionist that the trial
court has committed manifest error in
taking the view that the prosecution is
trying to fill up the lacuna and since the
other witnesses have not named the
present witness, he is not an important
witness. It is also stated that the order
passed by the trial court is non speaking
order, as it has not mentioned as to what
lacuna the prosecution is trying to fill,
which cannot be permitted to be done.

7. Opposing the revision, learned
counsel for the opposite party no.2 has
stated that in this case charge sheet was
already filed. On the other hand, learned
counsel for the revisionist has stated that
the trial court has given a wrong finding
that the Investigating Officer filed the
charge sheet on 05.06.2015, rather the
correct fact is that on 05.06.2015 charge
sheet was filed only against one accused
Shailendra Singh and further investigation
was pending against other accused and
charge sheet was filed against other
accused/opposite
party
no.3
on
05.11.2015, so the finding of the trial court
that on 05.06.2015 charge sheet was filed
is not correct.

8. Opposing the revision learned
A.G.A. as well as learned counsel for the
opposite party No.2 have stated that
presence of witness Mohd. Asad is very
much doubtful on the spot as other
witnesses, i.e. PW 1 and PW 2 have not
stated anything about the presence of this
1 All. Mohammad Shahid Siddiqui Vs. State of U.P. & Ors.
811
witness and the prosecution is simply
trying to linger on the proceedings by
producing the witness whose name does
not figure in the charge sheet.

9. Learned counsel for the revisionist
has cited a case law, (2017) 9 SCC 340 :
Ratanlal vs. Prahlad Jat and others,
wherein in paragraph 17 of the case law it
has been held by the Hon'ble Apex Court
as under :-

"17. In order to enable the court
to find out the truth and render a just
decision, the salutary provisions of Section
311 are enacted whereunder any court by
exercising its discretionary authority at
any stage of inquiry, trial or other
proceeding can summon any person as
witness or examine any person in
attendance though not summoned as a
witness or recall or re-examine any person
already examined who are expected to be
able to throw light upon the matter in
dispute. The object of the provision as a
whole is to do justice not only from the
point of view of the accused and the
prosecution but also from the point of view
of any orderly society. This power is to be
exercised only for strong and valid
reasons and it should be exercised with
caution and circumspection. Recall is not
a matter of course and the discretion given
to the court has to be exercised judicially
to prevent failure of justice. Therefore, the
reasons for exercising this power should
be spelt out in the order."

10. In the case of Manju Devi vs.
State of Rajasthan and another : (2019) 6
SCC 203, the Hon'ble Apex Court in
paragraphs 8, 9 and 10 has held as under :-

"8. Having given thoughtful
consideration to the rival submissions and
having examined record with reference to
the law applicable, we find it difficult to
approve the orders impugned; and it
appears
just
and
proper
that
the
application moved in this matter under
Section 311 CrPC be allowed with
direction to the trial court to ensure that
the testimony of the doctor conducting first
post-mortem comes on record.
9. Section 311 CrPC reads as under :

"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."

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 311 CrPC
and amplitude of the powers of the court
thereunder have been explained by this
Court in several decisions. In Natasha
Singh v. CBI, 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 :
(SCC pp.746 & 748-49, paras 8 & 15)

"8. Section 311 CrPC empowers
the court to summon a material witness, or
to examine a person present "at any
812 INDIAN LAW REPORTS ALLAHABAD SERIES
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 sue 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 capriciously or arbitrarily, as any
improper or capricious exercise of such
power may lead to undesirable results. An
application under Section 311 CrPC 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 CrPC 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 is original)

11. It is evident from the very
language of Section 311Cr.P.C. that
powers of the trial court in summoning the
witness under Section 311 Cr.P.C. are very
wide and for the ends of justice the trial
court "at any stage of inquiry, trial or other
proceedings
under
this
Code"
may
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 is appears to it to be
essential to the just decision of the case.

12. In the present case just after the
incident the witness Mohd. Asad had
1 All. Chhote Khan Vs. State of U.P. & Ors.
813
given an application along with an
affidavit
before
the
Chief
Judicial
Magistrate, Allahabad and the Chief
Judicial Magistrate, Allahabad had sent the
same to the Investigating Officer for
undertaking further proceedings.

13. Today, learned A.G.A. has filed
counter affidavit and in paragraph 6 of the
same, it is stated that the then Investigating
Officer had tried to contact the said
witness but the witness Mohd. Asad did
not turn up for getting his statement
recorded but in this counter affidavit it is
nowhere mentioned as to what efforts were
made by the Investigating Officer to
procure the attendance of this witness.

14. It appears to me that the
Investigating Officer was required to take
notice of the affidavit of the witness
Mohd. Asad when it was referred by the
Chief
Judicial
Magistrate,
Allahabad
during the course of the investigation but
the Investigating Officer has not taken care
of the examination of the same. The trial
court while disposing of the application
(74 Ka) under Section 311 Cr.P.C. has not
recorded its categorical finding as to
whether the presence of the witness is
essential for the due disposal of the trial or
not. Merely giving the finding that the
prosecution is trying to fill up the lacuna,
does not absolve the trial court from its
responsibility as bestowed under Section
311 Cr.P.C.

15. In view of the above mentioned
reasons and circumstances, to my view the
trial court has not properly applied its
mind while deciding the application (74
Ka) under Section 311 Cr.P.C. in the light
of the pronouncements of the Hon'ble
Apex Court as mentioned herein above
and the peculiar facts of the present case.

16.

Accordingly,
the
criminal
revision is liable to be allowed, which is
hereby allowed.

17. Order dated 26.04.2018, passed
by the learned Sessions Judge, Rae Bareli
in S.T. No. 429 of 2015 (State Vs.
Shailendra Singh and another), on the
application (74 Ka) under Section 311
Cr.P.C. is set aside and the matter is
remanded back to the trial court for
disposing of the application under Section
411 Cr.P.C. afresh, in the light of the
finding of this Court, expeditiously,
preferably within a period of one month
from the date of production of certified
copy of this order.
----------
(2020)1ILR 813

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2020

BEFORE
THE HON'BLE MANISH KUMAR, J.

Criminal Revision No. 673 OF 1999

Chhote Khan ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Jagdev Singh

Counsel for the Opposite Parties:
A.G.A

A.
Criminal
Procedure
Code,
1973-
Sections
397
&
401-
Revisional
jurisdiction - Interference with order of
acquittal - Extent of jurisdiction - It is a
supervisory
jurisdiction
which
is
exercised by the Court to correct the
manifest error/illegality resulting in gross
miscarriage
of
justice
-revisional
jurisdiction of the High Court cannot be