# Nanhe & Anr v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 830
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-10
- **Case number:** Application U/S 482. No. 43085 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanhe-anr-v-state-of-u-p-anr-50027
- **Pages:** 7

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections -364, 302, 201, Power conferred
under Section 311 Cr.P.C. - should be
invoked by the court only to meet the
ends of justice - power is to be exercised
only for strong and valid reasons and it
should be exercised with great caution
and circumspection - power under this
provision shall not be exercised if the
court is of the view that the application
4 All. Nanhe & Anr. Vs. State of U.P. & Anr.
831
has been filed as an abuse of the process
of law.(Para -22)

(B) Criminal Law - Code of Criminal
Procedure, 1973 - Section 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 - two parts
of the Section 311 - user of "May" in first
part "Shall" in second - first part is
discretionary,
second
part
is
obligatory.(Para - 8, 21)

Applications filed under Section 311 Cr.P.C. of
the applicants/accused - rejected - quashing of.
HELD:- Trial court made error in evidence
recording, violating natural justice and fair trial
principles. Accused-appellants have right to
cross-examine material witnesses (P.W. 6 & 7)
and trial court must provide full opportunity.
Impugned
order
passed
by
trial
court
quashed.(Para - 10)

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

List of Cases cited:

## Text

830 INDIAN LAW REPORTS ALLAHABAD SERIES
Nedumchira Luke and Others Versus
Joseph Joseph and Others (supra) are
silent about this point. However, in
judgment Bikash Ranjan Rout Versus
State through the Secretary (Home),
Government of NCT of Delhi (supra), the
Apex
Court
specifically
held
that
Magistrate if not satisfied with charge-sheet
may direct further investigation but before
taking cognizance. After taking cognizance
the Magistrate will have no power to
suomoto direct further investigation, it can
be directed if the investigating agency
seeks such direction.

16. Section 173(8) Cr.P.C. also
speaks of the same that nothing in this
section "shall be deemed to preclude
further investigation in respect of an
offence after a report sub-section (2) has
been forwarded to the Magistrate and,
where upon such investigation, the officer
in charge of police station obtains further
evidence, oral or documentary, he shall
further forward to the Magistrate a further
report." Thus, it is clear that the Magistrate
can
exercise
this
power
of
further
investigation on the application of the
investigating officer even if the cognizance
has been taken by the court. The Magistrate
cannot suo moto exercise its power to order
further investigation.

17. In the opinion of the court, in the
case in hand the view taken by the Magistrate
cannot be interfered with, because as per
Section 173 (8) Cr.P.C. and the rule laid
down in Bikash Ranjan Rout (supra) the
Magistrate has no power to order for further
investigation
suo
motu
after
taking
cognizance on charge sheet. He could order
for further investigation in exceptional
circumstances and that too on the prayer of
the Investigating Officer which is not the
position in the present case.

18. However, it will always be
available to the Magistrate to take recourse
to the provision of Section 319 Cr.P.C. if
any
material
is
disclosed
during
examination of the witnesses during trial.

19. Hence, in the opinion of the court,
there is no ground to interfere with the
order passed by the Magistrate concerned.
The application having no merits is liable
to b

20. The application under Section 482
Cr.P.C. is hereby dismissed.
----------
(2023) 4 ILRA 830
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 43085 of 2022

Nanhe & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ram Shiromani Yadav

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections -364, 302, 201, Power conferred
under Section 311 Cr.P.C. - should be
invoked by the court only to meet the
ends of justice - power is to be exercised
only for strong and valid reasons and it
should be exercised with great caution
and circumspection - power under this
provision shall not be exercised if the
court is of the view that the application
4 All. Nanhe & Anr. Vs. State of U.P. & Anr.
831
has been filed as an abuse of the process
of law.(Para -22)

(B) Criminal Law - Code of Criminal
Procedure, 1973 - Section 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 - two parts
of the Section 311 - user of "May" in first
part "Shall" in second - first part is
discretionary,
second
part
is
obligatory.(Para - 8, 21)

Applications filed under Section 311 Cr.P.C. of
the applicants/accused - rejected - quashing of.
HELD:- Trial court made error in evidence
recording, violating natural justice and fair trial
principles. Accused-appellants have right to
cross-examine material witnesses (P.W. 6 & 7)
and trial court must provide full opportunity.
Impugned
order
passed
by
trial
court
quashed.(Para - 10)

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

List of Cases cited:

1. Raja Ram Prasad Yadav Vs St. of Bihar & anr.
A.I.R 2013 (SC) 3081

2. R.B. Mithani Vs St. of Mah. , A.I.R. 1971,
Supreme Court 1630

3. St. of Haryana Vs Ram Prasad 2006 Cr.L.J.
1001

4. Nira Vs St. of Orissa, 2008 Crl. L.R. 1315

5. St. of Sikkim Vs Thukchuk Lachungpa 2005,
Crl. L.R 201

6. Rama Paswan Vs St. of Jhhark, 2007 Crl. L.J.
2750
7. Ismail Baba Saheb Vs A.A. Hulagen, 1997
Crl.L.J. 1804

8. Raju Vs St. of M.P., 2002, Crl.L.J. 2367

9. Raj Deo Sharma Vs St. of Bihar, A.I.R 1999
Supreme Court 3524

10. Mohan Lal Sham Ji Soni Vs U.O.I., 1991
Cr.L.J. 1521

11. Rajendra Prasad Vs Narcotic Cell Delhi, A.I.R
1999, Supreme Court 2292

12. Jamat Raj Vs St. of Maha., A.I.R 1968,
Supreme Court 178

13. V.N Patil Vs Niranjan Kumar & ors., (2021) 3
SCC 661

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard learned counsel for the
applicants, Sri Pankaj Kumar Tripathi,
learned A.G.A for the State and perused the
record.

2. This application under Section 482
Cr.P.C has been instituted by the applicants
for quashing the order dated 17.10.2022
passed by Special Judge (E.C. Act) /
Additional Sessions Judge, Court No. 4,
Moradabad passed in Special Sessions Trial
No. 336 of 2018 - State Vs. Nanhe & Anr.,
arising out of Case Crime No. 48 of 2018,
under Sections 364, 302, 201 I.P.C, Police
Station
Katghar,
District
Moradabad,
whereby the applications filed under
Section
311
Cr.P.C.
of
the
applicants/accused have been rejected.

3. In brief, the facts of the case are
that after submission of the charge-sheet in
the aforesaid crime number, the trial is
going on. On 18.08.2022 and 15.09.2022
examination-on-chief of P.W 6 and P.W 7
had been recorded. On 18.08.2022 when
832 INDIAN LAW REPORTS ALLAHABAD SERIES
the applicants' counsel was out of station,
an adjournment application was moved and
on 15.09.2022, the applicants' counsel was
busy in another Court, the opportunity of
cross-examination from the witnesses had
been closed and when the application under
Section 311 Cr.P.C was moved by the
applicants on 17.10.2022, it was rejected
same day by the impugned order stating
therein that examination-in-chief of P.W. 6
had been recorded on 18.08.2022 and
allowing the adjournment application on
22.08.2022 had been fixed for crossexamination. On 22.08.2022 P.W 6 was
present since morning, but none appeared
to cross-examine him hence at 3:20 cross
examination had been closed.

4. On 15.09.2022 the examination-inchief of P.W. 7 S.I. Mukesh had been
recorded at 11:00 a.m. and the applicants
were directed to call for their counsels but
the counsels did not appear, therefore
opportunity to cross examining P.W. 7 had
been closed at 4:45 p.m.

5. The learned trial court concluded
that since sufficient opportunity had been
provided, but the witnesses had not been
cross-examined, hence, there was no
sufficient ground to allow the application
45-B under Section 311 Cr.P.C and
accordingly rejected the application and
fixed 07.11.2022 for examination of rest of
the
witnesses.
Being
aggrieved,
this
application has been moved on behalf of
the applicants. Neither the State nor
opposite party no. 2 have filed any
objection/counter affidavit.

6. The application had been moved
during the course of examination of the
witnesses. It is crystal clear that the trial
court has not provided proper opportunity
and equal protection of law to the defence
side while several dates have been given to
the prosecution for examination of the
witnesses without any adjournment, the
learned trial court closed the crossexamination
same
day,
rejecting
the
adjournment application of the defence.

7. Learned trial judge could not
understand the abstracts behind the section
in which the accused persons had moved
application to recall the witnesses for cross
examination.

8. It would be proper to quote Section
311 Cr.P.C, which is as under :

"Section 311 in The Code Of
Criminal Procedure, 1973.

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."

9. In Raja Ram Prasad Yadav Vs.
State of Bihar and Anr. A.I.R 2013 (SC)
3081, it has been held that it is, therefore
imperative that 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 provisions, namely, for achieving a
just decision of the case. The power vested
under the said provisions is made available
to any court at any stage in any inquiry or
trial or other proceedings initiated under
4 All. Nanhe & Anr. Vs. State of U.P. & Anr.
833
the code for the purpose of summoning any
person as a witness or for examining any
persons in attendance, even though not
summoned as witnesses or to re-call or reexamine any person in attendance. In so far
as recalling and re-examining of any person
already
examined,
the
court
must
necessarily consider and ensure that such
re-call and re-examination of any person,
appears in the view of the court to be
essential for the just decision of the case.

10. On the above discussion, this
Court comes to the conclusion that the
learned
trial
court
had
committed
manifest error during the course of trial in
recording the evidence and has proceeded
with the case in harried manner in
violation of the principles of natural
justice and fair trial. The impugned order
is not sustainable in the eye of law and
deserves to be quashed.

11. In R.B. Mithani Vs. State of
Maharashtra, A.I.R. 1971, Supreme
Court 1630, the Hon'ble Supreme Court
has
held
that
additional
evidence
summoned
must
be
necessary
not
because, it would be impossible to
pronounce judgement but also because
there would be failure of justice without
it. Though the power must be exercised
sparingly and only in suitable case but
once such action is justified, there is no
restriction on the kinds of evidence,
which may be received. It may be formal
or substantial in nature.

12. In State of Haryana Vs. Ram
Prasad 2006 Cr.L.J. 1001, the Punjab &
Haryana High Court held that where the
examination and re-examination of the
witness is essential for the just decision
of the case, it is obligatory of the Court to
summon such a witness.

13. The Orissa High Court in Nira
Vs. State of Orissa, 2008 Crl. L.R. 1315,
held that this power can be exercised by
the Court even at the stage of preparation
of the judgment.

14. In State of Sikkim Vs.
Thukchuk Lachungpa 2005, Crl. L.R
201, the Sikkim High Court has held that
this power can be exercised even though
at the earlier stage of the trial, the Court
has rejected such application.

15. In Rama Paswan Vs. State of
Jhharkhand, 2007 Crl. L.J. 2750, the
Hon'ble Supreme Court has held that it
would not be improper, the exercise of the
power of the Court to summon a witness
under the Section merely because the
evidence
supports
the
case
of
the
prosecution and not that of the accused.
The Section is a general Section, which
applies to all proceedings, inquiries and
trials under the Court and empowers the
Magistrate to issue summons to any
witness at any stage of such proceedings,
trial or inquiry.

16. In Ismail Baba Saheb Vs. A.A.
Hulagen,
1997
Crl.L.J.
1804,
the
Karnataka High Court, has held that where
the production of the document and the
summoning of the witness is necessary for
the just decision of the case, the rejection of
the
application
on
the
ground
that
document has not been produced from
proper custody is not proper.

17. In Raju Vs. State of Madhya
Pradesh, 2002, Crl.L.J. 2367, the Madhya
Pradesh High Court has held that where the
documents filed with the Charge-sheet have
not been proved, important documents
relevant for the just decision of the trial
have not been filed, the Court would direct
834 INDIAN LAW REPORTS ALLAHABAD SERIES
their production exercising of power under
Section 311 Cr.P.C. and Section 165 of
Evidence Act.

18. In Raj Deo Sharma Vs. State of
Bihar, A.I.R 1999 Supreme Court 3524,
the Hon'ble Supreme Court has held that
once it is found that the evidence is
essential for the just decision of the case,
the witness can be recalled at any time
before pronouncement of the judgment, the
time factor would not come in the way.

19. In Mohan Lal Sham Ji Soni Vs.
Union of India, 1991 Cr.L.J. 1521,
Supreme Court, the Hon'ble Supreme Court
has held that an inquiry or trial in a
criminal proceedings comes to an end or
reaches its finality when the order or
judgment is pronounced and until then the
Court has power to use this Section.

20. In Rajendra Prasad Vs. Narcotic
Cell Delhi, A.I.R 1999, Supreme Court
2292, the Hon'ble Supreme Court has held
that it can not be laid down as legal
preposition that the Court can not exercise the
power of re-summoning any witness, if once
that power was exercised, nor can the power
be whittled down merely on the ground that
the prosecution discovered latches only when
the defence highlighted them during final
arguments. The power of the Court is plenary
to summon or even re-call any witness at any
stage of the case, if the Court considers it
necessary for a just decision.

21. As already said that there are two
parts of the Section 311, in this context, the
Hon'ble Supreme Court in Jamat Raj Vs.
State
of
Maharashtra,
A.I.R
1968,
Supreme Court 178 has held that the user
of "May" in first part "Shall" in second
shows, that when the first part is
discretionary, second part is obligatory.

In the Case of Mohan Lal (Supra)
the Hon'ble Supreme Court has also held
that the power to summon and examine any
witness may be exercised at the stage,
opportunity however is to be given to the
parties to rebut the evidence.

22. Para 14 to 17 of V.N Patil Vs.
Niranjan Kumar and others, (2021) 3 SCC
661; are relevant hence they are reproduced
as under :-

"14.
The
object
underlying
Section 311 CrPC 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 CrPC 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
CrPC have been well settled by this Court
in Vijay Kumar v. State of U.P., (2011) 8
SCC 136 : (2011) 3 SCC (Cri) 371 : (2012)
1 SCC (L&S) 240 : (SCC p. 141, para 17)

"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
4 All. Nanhe & Anr. Vs. State of U.P. & Anr.
835
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 v. State of W.B.,
(2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547
and thereafter in Ratanlal v. Prahlad Jat,
(2017) 9 SCC 340 : (2017) 3 SCC (Cri) 729
and Swapan Kumar Chatterjee v. CBI,
(2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839
. The relevant paragraphs of Swapan Kumar
Chatterjee v. CBI, (2019) 14 SCC 328 :
(2019) 4 SCC (Cri) 839 are as under:
Swapan Kumar Chatterjee v. CBI, (2019) 14
SCC 328 : (2019) 4 SCC (Cri) 839, SCC p.
331, paras 10-11)

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

23. In this case, the accusedappellants have right to cross-examine the
witnesses. Since P.W. 6 & 7 were the
material witnesses, therefore to provide full
opportunity
to
cross-examine
such
witnesses was the duty of the trial court.

O R D E R

24. (a) This Application U/s 482
CrPC is allowed.

(b) The impugned order dated
17.10.2022, passed by the trial court is
hereby quashed.

(c) The learned trial court is
directed to re-call PW 6 & 7 for their cross-
836 INDIAN LAW REPORTS ALLAHABAD SERIES
examination on behalf of all the accused
persons.

(d) Let a certified copy of this
order be sent to the concerned court for its
compliance immediately.
----------
(2023) 4 ILRA 836
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Application U/S 482. No. 46541 of 2018

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

Counsel for the Applicants:
Sri Rajiv Lochan Shukla

Counsel for the Opposite Parties:
G.A., Meera Verma, Sri Ranjan Upadhyaya,
Sri
Ramesh
Upadhyaya,
Sri
Ronak
Chaturvedi,
Sri
Shailesh
Pandey,
Sri
Shailesh Upadjyay, Sri Arun Pandey

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 354, 354B, 452, 504 & 506 - Code
of Criminal Procedure, 1973 - Sections
156 (3),200 & 202 , The Protection of
Children From Sexual Offences Act, 2012 -
Section 7/8 , The Schedule Castes And
The
Schedule
Tribes
(Prevention
of
Atrocities ) Act , 1989 - Section 3 - High
Court is entitled to quash a proceeding if it
comes to the conclusion that allowing the
proceeding to continue would be an abuse
of the process of the court - authority of
the court exists for advancement of
justice and if any attempt is made to
abuse that authority so as to produce
injustice, the court has power to prevent
abuse.)Para - 27,28)

Quashing of - summoning order & entire
proceedings of Complaint Case - complaint filed
by a minor under Section 156 (3) Cr.P.C. was
registered
as
a
complaint
-
minor's
representation was not proper - complaint was
not filed by a proper person - No medical
examination/injury report prepared regarding
incident with victim - Complaint filed against
applicants with connivance - to take revenge of
removal of encroachment done by father of
opposite party no. 2 - continuance of process
issued by applicants - removal of illegal
encroachment done by parents of opposite
party no. 2 - accused persons being related to
media started covering on media and India
news
-
harassment
done
by
powerful
persons.(Para -18,24,25)

HELD:-Complaint is nothing but a sheer misuse
of the process of law, made for the protection of
the children. To prevent abuse of the process of
law or otherwise to secure the ends of justice,
summoning order, the entire proceeding of
Complaint Case quashed. POCSO Court has
jurisdiction to hear the case against summoning
order under Section of SC/ST Act, as per the
judgement of the coordinate bench of this court
in Rinku (supra). Section 14A of SC/ST Act
provides a provision of appeal from any
judgement, sentence or order of a Special
Court.(Para -25,28,30)

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

List of Cases cited:

1. M/s Neeharika Infrastructure Pvt. Ltd. Vs
St. of Maha. & ors. (SC), A.G.I. ; N.C.W. ;
St. of Maha., Criminal Appeal No. 330 of
2021

2. Satish Vs Satish & anr., St. of Maha. & anr.,
Libnus, 2021 LawSuit (SC) 739

3. Phool Singh Vs The St. of M.P. , 2021 0
Supreme (SC) 760,

4. Jagmohan Singh Vs Vimlesh Kumar & ors.,
Criminal Appeal No. 741 of 2022