# Mustafa @Chautha v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 1067
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-19
- **Case number:** Application U/S 482. No. 22434 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mustafa-chautha-v-state-of-u-p-anr-50919
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 311& 482 - Indian Penal
Code, 1860 - Sections 294, 323, 504 &
506 - Application under Section 482 Cr.P.C. -
for quashing of impugned trial court's order
whereby Applicant's application moved under
Section 311 Cr.P.C. to recall and re-examine
PW-8 was rejected - Trial pending - certain
necessary to be asked from PW-8, therefore,
applicant moved an application u/s 311 Cr.P.C.
- Applicant relied upon the judgment of the
Apex Court in the matter of P. Sanjeeva Rao Vs
The St. of A.P.' wherein Hon'ble Apex Court held
that even at the cost of delay of proceedings,
application u/s 311 Cr.P.C. has to be allowed to
impart complete justice - per contra opposite
party no. 2 contented that raising questions
under 311 Cr.P.C. Application are not relevant,
trial is pending at final hearing stage and
further, change of counsel cannot be ground for
recalling the witness, once his testimony has
been recorded and cross-examination has been
closed - court finds that a change in legal
representation does not justify reopening crossexamination, which should have been completed
immediately after the examination-in-chief - The
Court held that recalling a witness at a late
stage,
especially
for
frivolous
questioning
prompted by a change in counsel, is not
permissible - The Court reiterated that the
power under Section 311 Cr.P.C. must be
exercised with caution and only for compelling
reasons - hence, relying on different precedents
from higher courts, the Court found no merit in
the Section 482 application - and dismissed it
accordingly.
(Para -13, 14, 15)

Application Dismissed. (E-11)

List of referred Cases: -

## Text

3 All. Mustafa @Chautha Vs. State of U.P. & Anr.
1067
----------
(2024) 3 ILRA 1067
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Application U/S 482. No. 22434 of 2023

Mustafa @Chautha ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Manoj Kumar Mishra

Counsel for the Respondents:
G.A., Sri Anil Kumar, Sri Saurabh Sachan,
Sri Ramesh Kumar Singh

Criminal Law - Criminal Procedure Code,
1973 - Sections 311& 482 - Indian Penal
Code, 1860 - Sections 294, 323, 504 &
506 - Application under Section 482 Cr.P.C. -
for quashing of impugned trial court's order
whereby Applicant's application moved under
Section 311 Cr.P.C. to recall and re-examine
PW-8 was rejected - Trial pending - certain
necessary to be asked from PW-8, therefore,
applicant moved an application u/s 311 Cr.P.C.
- Applicant relied upon the judgment of the
Apex Court in the matter of P. Sanjeeva Rao Vs
The St. of A.P.' wherein Hon'ble Apex Court held
that even at the cost of delay of proceedings,
application u/s 311 Cr.P.C. has to be allowed to
impart complete justice - per contra opposite
party no. 2 contented that raising questions
under 311 Cr.P.C. Application are not relevant,
trial is pending at final hearing stage and
further, change of counsel cannot be ground for
recalling the witness, once his testimony has
been recorded and cross-examination has been
closed - court finds that a change in legal
representation does not justify reopening crossexamination, which should have been completed
immediately after the examination-in-chief - The
Court held that recalling a witness at a late
stage,
especially
for
frivolous
questioning
prompted by a change in counsel, is not
permissible - The Court reiterated that the
power under Section 311 Cr.P.C. must be
exercised with caution and only for compelling
reasons - hence, relying on different precedents
from higher courts, the Court found no merit in
the Section 482 application - and dismissed it
accordingly.
(Para -13, 14, 15)

Application Dismissed. (E-11)

List of referred Cases: -

1. AG Vs Shiv Kumar Yadav, (2016) 2 SCC 402,

2. Girish Vs St. of U.P. & anr.(Application U/S
482 No. 4300 of 2020); 2020 SCC Online All
1062,

3. Vinod Kumar Vs St. of Punj.; (2015) 3 SCC
220,

4. P. Sanjeeva Rao Vs The St. of A.P.; Criminal
Appeal Nos. 874-875 of 2012 (arising out of
S.L.P. (Crl.) Nos. 4286-87 of 2011),

5. VSN. Patil Vs K. Niranjan Kumar & ors.;
(2021) 3 SCC 661.

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the
applicant, learned A.G.A. for the State and
Sri Ramesh Kumar Singh, Advocate
holding brief of Sri Anil Kumar, learned
counsel for opposite party No. 2.

2. The present 482 Cr.P.C. application
has been filed to quash the order dated
15.05.2023 passed by Special Judge
(POCSO Act)/Additional Session Judge,
Mirzapur in S.T. No. 18 of 2014 (State Vs.
Mustafa), arising out of Case Crime No.
581 of 2013, under Sections- 294, 323, 504,
506 I.P.C., Police Station- Kotwali Dehat,
District- Mirzapur.

3. Learned counsel for the applicant
submitted that during the course of trial, it
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
was found that certain questions are
necessary to be asked from P.W.-8(Dr.
Afzal Ahmad), therefore, applicant has
moved application under Section 311
Cr.P.C to summon P.W.-8(Dr. Afzal
Ahmad). It is next submitted that the
questions proposed to be asked are very
relevant for fair trial and justice to accused.
He next submitted that the Apex Court in
the matter of P. Sanjeeva Rao vs. The
State of A.P.; Criminal Appeal Nos. 874875 of 2012 (arising out of S.L.P. (Crl.)
Nos. 4286-87 of 2011) has taken view that
in all eventuality, even at the cost of delay
of proceedings, application under section
311 Cr.P.C. has to be allowed to impart
complete justice. The trial court, without
appreciating
the
facts
as
well
as
considering the law laid down by the Apex
Court, has rejected the application under
Section 311 Cr.P.C. vide order dated
15.05.2023, which is bad and liable to be
set aside.

4. Per contra, learned counsel
appearing for opposite party No. 2
submitted
that
from
the
perusal
of
impugned order, it is apparently clear that
defense has examined all the witnesses and
matter was also listed for final hearing. At
this stage, applicant has changed his
counsel and now under the advise of a new
counsel, applicant has filed application
under Section 311 Cr.P.C. raising four
questions after two and a half years after
closing of cross-examination of P.W.-8
(Dr. Afzal Ahmad). While deciding the
application under Section 311 Cr.P.C.,
learned trial court has considered all
aspects and also returned finding upon the
questions so raised. He firmly submitted
that questions are not relevant and further,
change of counsel cannot be ground for
recalling the witness, once his testimony
has been recorded and cross-examination
has been closed.

5. I have considered rival submissions
advanced by counsel for parties and
perused the records.

6. From the perusal of impugned
order, it is undisputed that after change of
counsel,
application
dated
05.04.2023
under Section 311 Cr.P.C. has been filed
for recalling the P.W.-8 (Dr. Afzal
Ahmad), after around three years from the
date of closing of cross-examination for
asking four questions, which are being
quoted herein-below:-

"प्रश्न-1 क्या प्रदशग क-6 में
अिंककत चोट हदनािंक 14-09-2013 को समय
8.00 िजे सुिह आना सिंिावित है?

प्रश्न-2 साक्षी सिंख्या-8 से यह िी
पूछा जाना आिश्यक है कक चोट की अिधि
की गणना ककस आिार पर ककया है?

प्रश्न-3 क्या यह चोटें हदनािंक 1309-2013 को 6.25 िजे शाम आना
सम्िावित है?

प्रश्न-4 रामेहटक स्िेसलिंग के चोट
की अिधि की गणना का आिार क्या है?"

7. While deciding the application,
learned Judge has given detailed finding
observing that ample opportunity was given
to the applicant for examination of witness
and case was listed for final hearing on
15.03.2023. At this stage, application dated
05.04.2023 under Section 311 Cr.P.C. has
been filed by a new counsel, who has filed
Vakalatnama only on 15.03.2023 on behalf
of applicant.
3 All. Mustafa @Chautha Vs. State of U.P. & Anr.
1069

8. Now, coming to the questions
proposed to be asked from P.W.-8 (Dr.
Afzal Ahmad). Question Nos. 2 & 4 are
purely of academic nature, may be useful
for medical student while examining the
injury and question Nos. 1 & 3 are also
having no relevance for trial as all facts
relating to the time of injury is already
mentioned in the injury report, which
cannot be replied by P.W.-8 (Dr. Afzal
Ahmad) at this belated stage. Therefore, all
the questions are having no relevance for
fair trial and adjudication of the case.

9. Now, coming to the judgments
relied upon by learned counsel for parties.

10. So far as judgment of P. Sanjeeva
Rao (Supra) is concerned, in that case,
cross-examination of other witnesses was
not completed and during that period
application was filed for recalling the
witnesses, but in the present case, after
change
of
counsel,
on
his
advice,
application under Section 311 Cr.P.C. has
been filed for recalling the P.W.-8 (Dr.
Afzal Ahmad) for asking four questions,
which are having no relevance with regard
to the trial as earlier discussed. Therefore,
this judgment would not come in rescue of
applicant.

11. Apex Court in the matter of Vinod
Kumar vs. State of Punjab; (2015) 3 SCC
220 has held that it is not appreciable to
call a witness for cross-examination after
such a long span of time. Relevant
paragraphs of the judgment is quoted
below:-

"57.1 Adjournments are sought
on the drop of a hat by the counsel, even
though the witness is present in court,
contrary to all principles of holding a trial.
That apart, after the examination-in-chief
of a witness is over, adjournment is sought
for cross-examination and the disquieting
feature is that the trial courts grant time.
The law requires special reasons to be
recorded for grant of time but the same is
not taken note of.

57.2 As has been noticed earlier,
in the instant case the cross-examination
has taken place after a year and 8 months
allowing ample time to pressurize the
witness and to gain over him by adopting
all kinds of tactics.

57.3 There is no cavil over the
proposition that there has to be a fair and
proper trial but the duty of the court while
conducting the trial to be guided by the
mandate of the law, the conceptual fairness
and above all bearing in mind its sacrosanct
duty to arrive at the truth on the basis of the
material brought on record. If an accused
for his benefit takes the trial on the path of
total mockery, it cannot be countenanced.
The Court has a sacred duty to see that the
trial
is
conducted
as
per
law.
If
adjournments are granted in this manner it
would tantamount to violation of rule of
law and eventually turn such trials to a
farce. It is legally impermissible and
jurisprudentially abominable. The trial
courts are expected in law to follow the
command of the procedure relating to trial
and not yield to the request of the counsel
to grant adjournment for non-acceptable
reasons.

57.4 In fact, it is not all
appreciable to call a witness for crossexamination after such a long span of time.
It is imperative if the examination-in-chief
is over, the cross-examination should be
completed on the same day. If the
examination of a witness continues till late
hours the trial can be adjourned to the next
day
for
cross-examination.
It
is
inconceivable in law that the crossexamination should be deferred for such a
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
long time. It is anathema to the concept of
proper and fair trial.

57.5 The duty of the court is to
see that not only the interest of the accused
as per law is protected but also the societal
and collective interest is safe-guarded. It is
distressing to note that despite series of
judgments of this Court, the habit of
granting adjournment, really an ailment,
continues. How long shall we say, "Awake!
Arise!". There is a constant discomfort.

Therefore, we think it appropriate
that the copies of the judgment be sent to
the learned Chief Justices of all the High
Courts for circulating the same among the
learned trial Judges with a command to
follow the principles relating to trial in a
requisite manner and not to defer the crossexamination of a witness at their pleasure
or at the leisure of the defence counsel, for
it eventually makes the trial an apology for
trial and compels the whole society to
suffer chicanery. Let it be remembered that
law cannot allowed to be lonely; a
destitute."

12. Again, Apex Court in the matter
of AG vs. Shiv Kumar Yadav; (2016) 2
SCC 402 has taken consistent view that
change of counsel cannot be a ground for
recalling the witness.

13. This Court in the matter of Girish
vs. State of U.P. and another (Application
U/S 482 No. 4300 of 2020); 2020 SCC
Online All 1062 relying on the judgment of
Shiv Kumar Yadav(Supra) has rejected the
application filed for summoning the P.W.-1
for cross-examination. Relevant paragraphs
of the judgment is quoted below:-

"5. Learned A.G.A. has also
relied upon the judgment of Hon'ble Apex
Court in AG v. Shiv Kumar Yadav,
(2016) 2 SCC 402. The relevant paragraphs
of the aforesaid judgment are quoted
below:

"27. It is difficult to approve the
view
taken
by
the
High
Court.
Undoubtedly, fair trial is the objective and
it is the duty of the court to ensure such
fairness. Width of power under Section 311
Cr.P.C. is beyond any doubt. Not a single
specific reason has been assigned by the
High Court as to how in the present case
recall of as many as 13 witnesses was
necessary as directed in the impugned
order. No fault has been found with the
reasoning of the order of the trial court. The
High Court rejected on merits the only two
reasons pressed before it that the trial was
hurried and the counsel was not competent.
In the face of rejecting these grounds,
without considering the hardship to the
witnesses, undue delay in the trial, and
without any other cogent reason, allowing
recall merely on the observation that it is
only the accused who will suffer by the
delay as he was in custody could, in the
circumstances, be hardly accepted as valid
or serving the ends of justice. It is not only
matter of delay but also of harassment for
the witnesses to be recalled which could
not be justified on the ground that the
accused was in custody and that he would
only
suffer
by
prolonging
of
the
proceedings. Certainly recall could be
permitted if essential for the just decision
but not on such consideration as has been
adopted
in
the
present
case.
Mere
observation that recall was necessary "for
ensuring fair trial" is not enough unless
there are tangible reasons to show how the
fair trial suffered without recall. Recall is
not a matter of course and the discretion
given to the court has to be exercised
judiciously to prevent failure of justice and
not arbitrarily.

While the party is even permitted
to correct its bona fide error and may be
3 All. Mustafa @Chautha Vs. State of U.P. & Anr.
1071
entitled to further opportunity even when
such opportunity may be sought without
any fault on the part of the opposite party,
plea for recall for advancing justice has to
be bona fide and has to be balanced
carefully
with
the
other
relevant
considerations
including
uncalled
for
hardship to the witnesses and uncalled for
delay in the trial. Having regard to these
considerations, we do not find any ground
to justify the recall of witnesses already
examined.

28. It will also be pertinent to
mention
that
power
of
judicial
superintendence under Article 227 of the
Constitution and under Section 482 Cr.P.C.
has to be exercised sparingly when there is
patent error or gross injustice in the view
taken by a subordinate court[47]*. A
finding to this effect has to be supported by
reasons. In the present case, the High Court
has allowed the prayer of the accused, even
while finding no error in the view taken by
the trial court, merely by saying that
exercise of power was required for granting
fair and proper opportunity to the accused.
No reasons have been recorded in support
of this observation. On the contrary, the
view taken by the trial court rejecting the
stand of the accused has been affirmed.
Thus, the conclusion appears to be
inconsistent with the reasons in the
impugned order.

29. We may now sum up our
reasons for disapproving the view of the
High Court in the present case:

(i) The trial court and the High
Court held that the accused had appointed
counsel of his choice. He was facing trial in
other cases also. The earlier counsel were
given due opportunity and had duly
conducted cross-examination. They were
under no handicap.

(ii) No finding could be recorded
that the counsel appointed by the accused
were incompetent particularly at back of
such counsel;

(iii) Expeditious trial in a heinous
offence as is alleged in the present case is
in the interests of justice;

(iv) The trial Court as well as the
High Court rejected the reasons for recall
of the witnesses;

(v) The Court has to keep in mind
not
only
the
need for
giving fair
opportunity to the accused but also the need
for ensuring that the victim of the crime is
not unduly harassed;

(vi) Mere fact that the accused
was in custody and that he will suffer by
the delay could be no consideration for
allowing recall of witnesses, particularly at
the fag end of the trial;

(vii) Mere change of counsel
cannot be ground to recall the witnesses;

(viii) There is no basis for
holding that any prejudice will be caused to
the accused unless the witnesses are
recalled;

(ix) The High Court has not
rejected the reasons given by the trial court
nor given any justification for permitting
recall of the witnesses except for making
general
observations
that
recall
was
necessary for ensuring fair trial. This
observation is contrary to the reasoning of
the High Court in dealing with the grounds
for recall, i.e., denial of fair opportunity on
account of incompetence of earlier counsel
or on account of expeditious proceedings;

(x) There is neither any patent
error in the approach adopted by the trial
court rejecting the prayer for recall nor any
clear injustice if such prayer is not
granted."

6. Considering the facts and
circumstances of the case, arguments
advanced and after going through the entire
judgment, this court is of the view that the
arguments advanced by the counsel is not
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
sustainable and that the plea can not be
taken by the revisionist's counsel that he
has been subsequently engaged, therefore,
one more opportunity may be given to him.
It is within the rights of the litigant to
engage any counsel at any stage but the
engagement of the new counsel and the
dawn of fresh wisdom upon the first
informant cannot be allowed to further
delay the matter. The circumstances under
which the application was rejected out are
sufficiently shown in the impugned order.
The impugned order does not reflect any
element of inconsistency or any abuse of
court's process which may persuade this
Court to interfere in the same."

14. Further, Apex Court in the matter
of V.N. Patil vs. K. Niranjan Kumar and
others; (2021) 3 SCC 661 has clearly held
that power under Section 311 Cr.P.C. has
to be exercised judiciously for strong and
valid reasons and with caution. Relevant
paragraphs of the judgment is quoted
below:-

"13. The scope of Section 311
Code of Criminal Procedure which is
relevant for
the
present
purpose is
reproduced hereunder:

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.

14. The object underlying Section
311 Code of Criminal Procedure 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 Code of Criminal Procedure
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
Code of Criminal Procedure have been well
settled by this Court in Vijay Kumar v.
State of Uttar Pradesh and Anr. 2011 (8)
SCC 136.

"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 and Ors. v.
State of West Bengal and Anr. 2014 (13)
SCC 59 and thereafter in Ratanlal v.
3 All. Sahabi Khatoon Vs. State of U.P. & Anr.
1073
Prahlad Jat and Ors. 2017(9) SCC 340 and
Swapan Kumar Chatterjee v. Central
Bureau of Investigation 2019 (14) SCC
328. The relevant paras of Swapan Kumar
Chatterjee (supra) are as under:

"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 Code of
Criminal Procedure 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 Code of Criminal Procedure
has to be exercised judiciously for strong
and valid reasons and with caution and
circumspection to meet the ends of justice."

15. In the light of facts mentioned
herein-above, this Court is of the view that
at a very belated stage, witness cannot be
recalled for asking frivolous questions and
that too on the advice of a new counsel.
The law is very well settled that change of
counsel cannot be a ground for recalling the
witness. Not only this, after examinationin-chief, cross-examination should have
been completed on the very same date and
at this very belated stage, there would be no
purpose for cross-examination as it is
practically not possible for a witness to
reply such technical questions. Power
under Section 311 Cr.P.C. is always to be
exercised very consciously for a very
strong and unrebuttable reasons and not in
a very casual manner as in the present case.

16. Therefore, under such facts and
circumstances of the case as well as
judgments of Apex Court and this Court,
instant 482 application lacks merit and is
accordingly, dismissed.

17. No order as to costs.
----------
(2024) 3 ILRA 1073
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2023

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Application U/S 482. No. 23246 of 2023

Sahabi Khatoon ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants: