# Mohd. Saddam @ Mohd. Zeeshan & Ors v. State of U.P

- **Citation:** (2021) 2 ILRA 162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-02
- **Case number:** U/S 482/378/407 No. 304 of 2021
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-saddam-mohd-zeeshan-ors-v-state-of-u-p-46726
- **Pages:** 6

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 311 - Power
to
summon
material
witness,
or
examine
person
present
-
The
applicant's unnecessary attempt and
intent to get retrial is not justified.

Application
of
the
accused
applicants
purported to be under Section 311 Cr.P.C.
was rejected by trial court.

HELD:- The application under Section 311
Cr.P.C. seems flimsy and as such is having
no force. Trial court in it's impugned order
has elaborately discussed about the lack of
justification of calling proposed evidence
and witness in their application under
Section 311 Cr.P.C. at the stage of final
decision. Court does not find any reason to
interfere at this stage in the impugned
order
rejecting
the
application
under
Section 311 Cr.P.C.(Para -14,18)

Application u/s 482 Cr.P.C. rejected. (E-6)

List of Cases cited:-

Manju Devi Vs St. of Raj. & anr. , 2019 (2) JIC
279 (SC)

## Text

162 INDIAN LAW REPORTS ALLAHABAD SERIES
finding authority, therefore, we leave it open
for all the petitioners to challenge the
impugned orders before the Appellate
Tribunal under Section 112 of the CGST Act/
U.P. GST Act as and when the State Bench
and Area Benches of the Appellate Tribunal
are constituted in the State of Uttar Pradesh.
However, till expiry of the period of
limitation for filing appeals under Section
112 of the CGST Act after establishment of
the State Bench and Area Benches or till
appeals are filed, whichever is earlier, no
coercive action shall be taken against the
petitioners herein pursuant to the impugned
orders passed by the first authority or the first
appellate authority. Liberty is also granted to
the petitioners to avail such remedy as
available to them under law in respect of
other reliefs which have not been considered
and decided by this judgment.

33. For all the reasons stated above, the
writ petitions are disposed off as indicated
above. Accordingly, the relief Nos.(A), (D-1)
and (E-1), are granted. There shall be no order
as to costs.

34. We hope and trust that the respondent
Nos.1, 2, 3 and 6 shall ensure compliance of
this order within the stipulated time frame.
----------
(2021)02ILR A162
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.02.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

U/S 482/378/407 No. 304 of 2021

Mohd. Saddam @ Mohd. Zeeshan & Ors.
 ...Applicants
Versus
State of U.P. ...Opposite Party

Counsel for the Applicants:
Mohsin Iqbal

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 311 - Power
to
summon
material
witness,
or
examine
person
present
-
The
applicant's unnecessary attempt and
intent to get retrial is not justified.

Application
of
the
accused
applicants
purported to be under Section 311 Cr.P.C.
was rejected by trial court.

HELD:- The application under Section 311
Cr.P.C. seems flimsy and as such is having
no force. Trial court in it's impugned order
has elaborately discussed about the lack of
justification of calling proposed evidence
and witness in their application under
Section 311 Cr.P.C. at the stage of final
decision. Court does not find any reason to
interfere at this stage in the impugned
order
rejecting
the
application
under
Section 311 Cr.P.C.(Para -14,18)

Application u/s 482 Cr.P.C. rejected. (E-6)

List of Cases cited:-

Manju Devi Vs St. of Raj. & anr. , 2019 (2) JIC
279 (SC)

(Delivered by Hon'ble Vikas Kunvar Srivastav, J.)

1. The case is called out.

2.

Heard
learned
counsel
for
applicants, Sri Mohsin Iqbal, Advocate as
well as learned Additional Government
Advocate for State and perused the record.

3. The present application under
Section 482 Cr.P.C. is directed against the
order
of
the
court
below
(learned
Additional Sessions Judge, Court no.3,
2 All. Mohd. Saddam @ Mohd. Zeeshan & Ors. Vs. State of U.P.
163
Faizabad)
passed
in
Sessions
Trial
No.84/2013 by which the application of the
accused applicants purported to be under
Section 311 Cr.P.C. was rejected. The
prayer made in the present application runs
as under:-

"Wherefore, it is most respectfully
prayed that this Hon'ble Court may kindly
be pleased to exercise the powers under
Section 482 Cr.P.C. and to quash the order
dated 06.01.2021 passed by the learned
Additional District and Sessions Judge,
Court no.3, Faizabad, S.T. No.84 of 2013
(arising out of Crime No.3895 of 2012)
U/S- 147, 148, 149, 336, 504, 302, 307, 506
IPC, Police Station- Kotwali Nagar,
District Faizabad State Vs. Mohd. Siddique
and others which is contained as Annexure
No.4 to the petition, allow the petition
under Section 482 Cr.P.C. and direct the
learned Trial Court to firstly summon the
doctor as well as injury report, Bed Head
Ticket etc. of injured Suleman-PW-2 from
K.G.M.U.,
Lucknow
and
thereafter
conclude the trial, in the interest of
justice."

4. It would be pertinent to reproduce
para-2 of this application which is as
under:-

"That the petitioners are involved
in case crime No.3895 of 2012, under
Section 147, 148, 149, 302, 307, 336, 504,
506 IPC of P.S.-Kotwali Nagar, District-
Faizabad,
which
was
registered
on
8.12.2012 at 4:00 p.m. relating to the
incident dated 8.12.2012 at 2.15 p.m. on
the information of Mohd. Usman."

5. The certified copy of the impugned
order is made Annexure No.4 to the present
application. From perusal of the order dated
06.1.2021, it is obvious that the applicants
have
moved
an
application
bearing
No.234(Kha) in Sessions Trial No. 84/2013
(State Vs. Mohd. Saddam and Ors.)
pending before that Court, to the effect that
since the injured of the occurrence involved
in the aforesaid Sessions Trial namely
Suleman (PW-2) stated in his examination
before the court that he was admitted in
District Hospital, Faizabad from where he
was referred to Lucknow by doctor,
therefore, the said doctor alongwith bed
head ticket and reference letter be called in
the court for examination alongwith doctors
at Trauma Center, Lucknow who made
medical examination and treatment of the
said injured, exercising the power vested in
the court under Section 311 Cr.P.C. The
impugned order has also mention of the
fact that the applicants have not made clear,
whether
the
proposed
witnesses
and
evidences sought to be summoned in the
court would be prosecution witnesses or the
witnesses of the defence.

6. Further, learned court below
observed that the said applications are
moved in the mid of arguments impressing
on the fact that First Information Report is
anti-timed with a view to improve their
case, though they themselves have led the
evidence of their four witnesses in defence
also. Learned court below further observed
that after the closure of the prosecution
evidence, the accused-applicants were
examined under Section 313 Cr.P.C., were
afforded opportunity to lead evidence and
they virtually availed the said opportunities
in the trial, thereafter the evidence in
defence was led by them sufficiently.
Therefore, the date was fixed for final
argument long back in the year 2016.

7. Learned court below further
observed that the applicants have no
explanation as to why the proposed
164 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence and witnesses sought to be
summoned could not be produced by them
in the course when they were availing the
opportunity to adduce evidence in defence
before the Court. Further, learned trial
court observed that though the application
moved by the accused applicants under
Section 311 Cr.P.C. have no justification
and force to invoke the discretion of the
Court, then also, this would be open for the
court to call any such evidence or witness
under Section 311 Cr.P.C. when it feels
necessary in the interest of justice.

8. The fact as to the tactics to delay
the decision in the trial, adopted by learned
counsel for the defence is also taken note
by the trial court itself. In its order, the
court below mentions that despite the order
of the High Court with regard to
expeditious disposal, the trial was being
posted from date to date since 26.05.2016
for final argument, whereas the earlier
presiding officer had also heard the
arguments and thereafter the present trial
court
also
continuously
hearing
the
arguments. It is now to sum up the hearing
but any such need of evidence in the
interest of justice has never been raised
earlier at any stage of the arguments.

9. Learned court below further stated
in the impugned order that within such a
long span of time, no such application
invoking the jurisdiction under Section 311
Cr.P.C. was moved by the learned counsel
for the defence before 29.10.2020, is in
itself suggestive of accused applicants'
delaying tactics. Ultimately learned court
below had dismissed the application, fixing
12.01.2021 for rest of the arguments.

10. Learned counsel for the accused
applicants has also prayed for an interim
order of staying the proceeding of aforesaid
Sessions Trial No. 84/2013, he pressed
today that the judgment in the case is
likely to be pronounced tomorrow i.e.
03.02.2021.

11. Learned counsel summed up his
arguments for invoking the discretion of
this court under Section 482 Cr.P.C. with
vehemence to stifle the proceeding of the
court below at the stage of pronouncement
of the judgment.

12. In support of his arguments,
learned counsel for the applicant relied on
the case law propounded by Hon'ble
Supreme Court in the case of Manju Devi
Vs. State of Rajasthan & Anr. reported in
2019 (2) JIC 279 (SC), wherein it is held
that the trial court is not justified to reject
the application under Section 311 Cr.P.C.
merely on the reason that trial was pending
for eight years.

13. Learned A.G.A. on his turn,
submitted that no doubt the discretion of
calling any witness not examined or
recalling a witness has already been
examined or if any evidence needed in the
interest of justice is vested in the course
before which trial is running but the
exercise of the said discretion depends on
the necessity to impart justice between the
parties. The prosecution has examined all
his witnesses including PW-2, 'Suleman'
who was the injured witness in the incident
along with the medical certificate, in
corroboration of the statement therein.
After
closure
of
the
evidence
of
prosecution, the applicant accused were
called on in person by the court under
Section 313 Cr.P.C. The questions were put
before them on the basis of the prosecution
evidence produced against them in the trial.
When they were asked to produce any
evidence or witness in their defence, they
2 All. Mohd. Saddam @ Mohd. Zeeshan & Ors. Vs. State of U.P.
165
availed the opportunity and produced four
witness in defence. Thereafter since 2016,
the case is being posted for final hearing. It
was materially heard on merit from time to
time. The accused applicants have no
explanation or justification why and under
what circumstances they have sought
invocation of discretion of the court under
Section 311 Cr.P.C. to call for the evidence
and witness afresh.

14. It is observed by this Court also that
the applicants have neither stated in their
application under Section 311 Cr.P.C. before
the trial Court nor in their present application
under Section 482 Cr.P.C. that how the said
evidence and witnesses are relevant to which
of the issue involved in the trial, therefore, the
application under Section 311 Cr.P.C. seems
flimsy and as such is having no force. On the
other hand learned trial court in it's impugned
order has elaborately discussed about the lack
of justification of calling proposed evidence
and witness in their application under Section
311 Cr.P.C. at the stage of final decision.

15. Section 311 Cr.P.C. reads as under:-

"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."

16. The Apex Court in case law
Manju Devi (Supra) relied by the learned
counsel for the applicants, discussed in its
para-9.1 as under:-

9.1 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 in so far 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 1. In Natasha
Singh v. CBI (State) : (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, the
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.
166 INDIAN LAW REPORTS ALLAHABAD SERIES

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."

17. This would be also relevant here
to mention the copy of the order dated
05.07.2017 of Hon'ble Supreme Court in
Suleman Vs. State of Uttar Pradesh
submitted by learned A.G.A. which relates
to present Sessions Trial No.84/2013, the
said order reads as under:-

"Delay condoned.

The case of the petitioner is that
the trial is already in progress in S.T.
84/2013 regarding the incident in question
where version of the complainant in the
present case No.1604/2015 before the
Chief Judicial Magistrate, Faizabad, U.P.
can also be gone into.

In that view of the matter, the
proceedings
in
the
present
case
No.1604/2015 before the Chief Judicial
Magistrate, Faizabad, U.P. may be taken
up only after conclusion of the first trial.

The special leave petition is
disposed of in above terms.

Pending applications, if any,
shall also stand disposed of."

18. The accused applicants have no
denial in their applications under Section
482 Cr.P.C. that they had availed the
opportunity
to
adduce
evidence
and
examine
witnesses
in
their
defence,
moreover, they have sufficiently examined
the
PW-2,
injured
witness,
Suleman
alongwith
the
documentary
evidences
produced to prove the injury. Presently, as
learned counsel for the present accused
applicants submitted that the argument
have already been submitted by learned
counsels for the respective parties before
the trial court and the judgment is likely to
be pronounced tomorrow i.e. 03.02.2021.
Court does not find any reason to interfere
at this stage in the impugned order dated
06.01.2021 rejecting the application under
Section 311 Cr.P.C. The applicants may not
2 All. Lalman & Anr. Vs. State of U.P. & Anr.
167
be permitted to stifle the proceeding
without any reasonable cause. They may
also not be permitted to fill up any lacuna
in their defence particularly when the trial
court in it's order impugned in the
application has left open the room for
exercise of it's discretion vested in it under
Section 311 Cr.P.C. if it feels necessary, in
the course of delivering it's judgment. The
applicant's unnecessary attempt and intent
to get retrial is not justified.

19. At this stage, when the present
application under Section 482 Cr.P.C. is
lacking any prominent issue which need be
proved with the help of evidence and
witnesses sought to be summoned as well
as for lack of pleading as to reasonable
apprehension, if their move under Section
311 Cr.P.C., not allowed what adverse
effect would occasion, entailing gross
injustice to them, this Court does not find
any force in the application to interfere
with the proceedings of court below.

20. On the basis of discussions made
hereinabove, the applicants' application
under Section 482 Cr.P.C. is REJECTED.

21. Deputy Registrar (Criminal) is
directed to inform the result of the present
application under Section 482 Cr.P.C.
forthwith through e-mail or other ways to
learned Additional District and Sessions
Judge, Court No.3, Faizabad forthwith.
----------
(2021)02ILR A167
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.02.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

U/S 482/378/407 No. 776 of 2021
Lalman & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Nijam Ahamad

Counsel for the Opposite Parties:
G.A.
(A) Criminal Law - Indian Penal Code,
1860 - Sections 420 - Cheating and
dishonestly inducing delivery of cheating,
Sections
467
-
forgery
for
valuable
security,will etc. , Sections 468 - forgery
for purpose of cheating , Sections 471 -
using as genuine a forged document or
electronic
record,
Code
of
criminal
procedure, 1973 - Section 239 - when
accused shall be discharged .

(B) Criminal Law - Code of criminal
procedure, 1973 - Sections 219 - Three
offences of same kind within year may be
charged together, Sections 220 - trial for
more than one offence, Section 300 -
Person once convicted or acquitted not to
be tried for same offence - The two
criminal cases against the same execution
of same sale deed dated 3.11.2016 and
charge sheet submitted in both the cases
are
not
suffering
from
the
vice
of
sameness. (Para -13)

Application for discharge under Section 239
Cr.P.C. placed before the Court of Magistrate on
7.1.2019 by the present accused applicants
alongwith
other
co-accused
-

availed
opportunity of hearing - they had not proposed
any evidence in their favour - only ground setforth for their discharge - one crime case in
relation with the same sale deed has again been
made subject matter of the present Case Crime
lodged by the opposite party no.2 . (Para -13)

HELD:- No instance of abuse of power or error
of law particularly as to the lack of allegations
which constituted an offence committed by the
applicants against the opposite party no.2, the
complainant of the Case Crime No.30/2019,
there is no reason to interfere in both the
impugned
order
dated
21.1.2020
and
16.12.2020 passed by the court's below under