# Pradeep Kumar Jain v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 376
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-07
- **Case number:** Criminal Misc. Application U/S 482 No. 21995 of 2021
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-jain-v-state-of-u-p-ors-49031
- **Pages:** 10

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 & 311 -
Indian Penal Code, 1860-Section 364rejection-recall
application
u/s
311
Cr.P.C.-victim
was
kidnapped
and
murdered-during
pendency
of
the
investigation,
one

co-accused
was
kidnapped by rest of the accused persons-
second FIR lodged in which mother stated
that his son was also accused in earlier
murder in which first FIR was lodged and
she was examined as PW-4 but she had
been
declared
hostile-the
present
applicant
moved
application
for
reexamination of PW-4 on the ground that
in the audio cassette she had accepted
that her son and other accused were
involved in the murder of victim and in
that case she was examined as PW-1-Trial
court rejected the application on the
ground that her extra judicial confession
before
the
news
channel
is
not
documentary evidence while she had been
examined and cross-examined earlier-the
same had been filed only for lingering on
the trial of the case-the fairness of trial
has to be seen not only from point of view
of the victim, but also from the point of
view of the accused and the society-The
accused cannot have the witness recalled
for re-examination as a matter of right
and extraordinary provision cannot be
used as an afterthought to fill the
gaps.(Para 1 to 30)

B. It is well settled that the power
conferred u/s 311 Cr.P.C. 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 view that
the application has been filed as an abuse
of the process of law.(Para 23)

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

## Text

376 INDIAN LAW REPORTS ALLAHABAD SERIES
parties have entered into compromise and
thus this Court quashed the pending
proceedings on the basis of compromise
entered into between the parties.

10. Following the view that efforts
and encouragement should be made to
resolve controversy through mediation
especially in the matrimonial cases, in the
instant case, the Court has devoted too
much precious time and had granted
accommodation to the parties in order to
enable
them
to
reach
an
amicable
settlement of the dispute as all is well that
ends well.

11. In the instant case, the compromise
has been entered into between the parties
and the proceedings are liable to be quashed
but prior to compromise, this Court had
granted ample opportunities to the parties to
settle their dispute. Initially the applicant
was directed to appear before Court below
to apply for bail and was enlarged on bail,
later on, parties entered into compromise
and before the Mediation Centre at District
Ghaziabad, where they have decided to live
together as husband and wife but thereafter,
dispute again arose and both parties started
living separately. Again, they entered into
compromise, which gave rise to filing of
present second 482 Cr.P.C. petition in which
the co-ordinate Bench had referred the
matter before the mediation centre of this
Court, where the parties arrived at interim
settlement but that later on failed. Relying
on the statement of the parties that the
matter has been settled, a co-ordinate Bench
of this Court had sent the matter for
verification of the compromise, which
compromise was verified but it appears that
some misunderstanding again took place
between
the
parties
and
on
several
occasions,
this
Court
granted
accommodation to the parties, as per their
whims and fancies once for six months and
again for three months, enabling them to
resolve their disputes as the Court considers
it to be its societal duty to make attempts to
repair the strained relations of husband and
wife by way of amicable settlement since
the marriage occupies vital role to play in
the society. Ultimately, the efforts of the
Court succeeded and the differences as well
as plight between the husband and wife got
amicably settled in terms of the compromise
entered between the parties. The parties
appeared before the Court and have stated
that they are living happily and have no
grievance against each other. Furthermore,
the opposite party no.2 has stated that she
has no objection in case, the proceedings are
quashed by this Court.

12.

Accordingly,
the
instant
application is allowed. The proceedings of
Case No. 4912 of 2017 (State Vs. Yogesh
Pandey and another) arising out of Case
Crime No. 0159 of 2017 under Sections
498A, 323, 504, 506, 406 I.P.C. and Section
3/4 of Dowry Prohibition Act, at Police
Station Mahila Thana, District Ghaziabad
pending before learned VIIIth Additional
Chief
Judicial
Magistrate,
District
Ghaziabad are hereby quashed.
----------
(2022) 9 ILRA 376
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Misc. Application U/S 482 No. 21995 of
2021

Pradeep Kumar Jain ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties
9 All. Pradeep Kumar Jain Vs. State of U.P. & Ors.
377
Counsel for the Applicant:
Sri Satyendra Narayan Singh

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 & 311 -
Indian Penal Code, 1860-Section 364rejection-recall
application
u/s
311
Cr.P.C.-victim
was
kidnapped
and
murdered-during
pendency
of
the
investigation,
one

co-accused
was
kidnapped by rest of the accused persons-
second FIR lodged in which mother stated
that his son was also accused in earlier
murder in which first FIR was lodged and
she was examined as PW-4 but she had
been
declared
hostile-the
present
applicant
moved
application
for
reexamination of PW-4 on the ground that
in the audio cassette she had accepted
that her son and other accused were
involved in the murder of victim and in
that case she was examined as PW-1-Trial
court rejected the application on the
ground that her extra judicial confession
before
the
news
channel
is
not
documentary evidence while she had been
examined and cross-examined earlier-the
same had been filed only for lingering on
the trial of the case-the fairness of trial
has to be seen not only from point of view
of the victim, but also from the point of
view of the accused and the society-The
accused cannot have the witness recalled
for re-examination as a matter of right
and extraordinary provision cannot be
used as an afterthought to fill the
gaps.(Para 1 to 30)

B. It is well settled that the power
conferred u/s 311 Cr.P.C. 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 view that
the application has been filed as an abuse
of the process of law.(Para 23)

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

1. Natasa Singh Vs C.B.I (2013) 5 SCC 741,

2. Raja Ram Prasad Yadav Vs St. of Bih. & anr.
(2013) 14 SCC 461

3. Mannan SK & ors. Vs St. of W.B. & anr.
(2014) SC 2950

4. V.N. Patil Vs K. Niranjan Kumar & ors. (2021)
3 SCC 661

5. Vijay Kumar Vs St. of U.P. & anr. (2011) 8
SCC 136

6. Mannan Shaikh & ors. Vs St. of W.B. & anr.
(2014) AIR 13 SCC 59

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

8. Swapan Kumar Chattejee Vs C.B.I. (2019) 14
SCC 328

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Satyendra Narayan
Singh, learned counsel for the applicant and
Mr. Mayank Awasthi, learned counsel
representing for the State as well as perused
the entire material available on record.

2. The present 482 Cr.P.C. application
has been filed to quash the order dated
04.10.2021 passed by learned Additional
District and Sessions Judge, Court No.12,
Muzaffar Nagar, in Session Trial No.592 of
2004 (State vs. Dharmpal), arising out of
Case Crime No.24 of 2004, under Section
378 INDIAN LAW REPORTS ALLAHABAD SERIES
364
IPC,
Police
Station-Nai
Mandi,
District-Muzaffar
Nagar
whereby
the
application of the applicant under Section
311 Cr.P.C. for further examination of
P.W.4/Smt. Rajeeri, has been rejected.

3. Brief facts of the case are that for
the incident dated 24.01.2004 at about
07:00 pm, the F.I.R. was lodged on
25.01.2004 at about 06:30 p.m. stating
therein that the applicant's son, namely,
Sachin Jain aged about 20 years had gone
with his Maruti Car bearing No.UP 12G
2333, but he did not return in the night and
on the next day at about 11:00 a.m., the
student leader Katar Singh informed that
Sachin Jain was seen at about 09:00 p.m.
on 24.01.2004 alongwith Raju s/o Vedpal,
who had abducted him with the help of his
friend.

An application was moved on
26.01.2004 before the concerned S.O.
furnishing the name of two eye witnesses,
namely, Tasavvar Husain and Mam Chand
Verma, who have seen the incident dated
24.01.2004 wherein the victim Sachin Jain
was kidnapped by Rohit, Katar Singh,
Dharmpal, Raju and Kapil. On the
aforesaid application, the Investigating
Officer recorded the statements of Mam
Chand and Tasavvar, who have stated that
they were eye witness of abduction of
Sachin Jain by Dharmpal, Rohit, Kapil and
Raju. During course of investigation,
maruti car of Sachin Jain bearing No.UP
12G 2333 was recovered in the presence of
two independent witnesses, namely, Babu
Bangali and Sonu wherein the seat of
Maruti Car was found blood stained. The
aforesaid blood stained seat cover was sent
to the Forensic Science Laboratory, U.P.
for examination and its report has been
submitted on 06.08.2004. From the said
report dated 06.08.2004, it was found that
the blood stained seat cover of the Maruti
car was that of victim Sachin Jain, whose
dead body was found in the canal. The
aforesaid fact of throwing the dead body of
victim Sachin Jain in the canal has been
admitted by the accused persons. During
investigation, the statements of co-accused
Dharmpal was recorded, who has stated
that the victim Sachin Jain was kidnapped
by him alongwith other co-accused persons
and subsequently, murdered, thereafter, his
dead body was thrown in the canal. Stereo
and two speakers of the said Maruti car was
also recovered on pointing out of coaccused Dharmpal.

During pendency of the aforesaid
investigation, the co-accused Raju was
kidnapped by rest of the accused persons,
hence an F.I.R. has been lodged by Smt.
Rajveeri, (mother of co-accused Raju)
against the co-accused persons Dharmpal
and Rohit on 14.04.2008 at about 11:00
a.m., which was registered as Case Crime
No.151 of 2004, under Section 364 IPC,
P.S.-Nai Mandi, District-Muzaffar Nagar.
After investigation, charge sheet has been
submitted against the named accused
persons and trial of the accused persons has
been proceeded as Session Trial No.457 of
2004. During trial, Smt. Rajveeri has been
examined before the court concerned as
P.W.-1, who has supported the version of
FIR as lodged by her. She has stated that
her son, namely, Raju was also accused in
the murder of Sachin Jain and the aforesaid
fact was also disclosed by the co-accused
Dharmpal in his statement. Subsequently,
in the incident of murder of co-accused
Raju, the co-accused Dharampal and other
co-accused persons have been acquitted in
Session Trial No.457 of 2004.

4. Learned counsel for the applicant
submits
that
earlier
the
applicant
approached before this Court by means of
filing an application U/s 482 No.19433 of
9 All. Pradeep Kumar Jain Vs. State of U.P. & Ors.
379
2007 wherein the Co-ordinate Bench of this
Court vide order dated 20.08.2007 has
stayed the further proceedings of Session
Trial No.592 of 2004. The said order dated
20.08.2007 was extended from time to
time. Thereafter, in view of the judgment of
Apex Court in the case of Asian Surface
Road Transport vs. State, the court
concerned has proceeded in Session Trial
No.592 of 2004 and the statements of PW1, Pradeep Jain and PW-2, Amit Kumar
Jain has been recorded.

5. Learned counsel for the applicant
further submits that during pendency of
trial, the applicant moved an application
before the trial court to summon the Fard
recovery which was identified by the
applicant, however, the trial court has
rejected the said application vide order
dated 05.04.2021. Aggrieved by the order
dated 05.04.2021, the applicant approached
this Court by means of filing application
U/s 482 No.13699 of 2021, which is still
pending before this Court.

6. He further submits that in Session
Trial No.592 of 2004, Smt. Rajveeri has
been examined before the trial court as
PW-4, but she has been declared hostile.
However, in the entire record which was
recorded in the case diary, SCD-15, Smt.
Rajveeri has accepted the murder of Sachin
Jain and in the Case Crime No.151 of 2004,
Smt. Rajveeri has also stated that in the
murder of Sachin Jain, the co-accused
Dharmpal and Rohit etc. are involved.
Subsequently, the applicant moved an
application u/s 311 Cr.P.C. before the trial
court for re-examination of Smt. Rajveeri
on the ground that in the audio cassette
Smt.
Rajveeri
has
accepted
that
involvement of co-accused Dharmpal,
Rohit and other persons and the same has
also been stated by her in her statement
given in Case Crime No.151 of 2004, under
Section 364 IPC in Session Trial No.757 of
2004 wherein she was examined as P.W.-1.
The said application was also moved on the
ground of re-examining Smt. Rajveeri with
respect to her extra judicial confession
before the news channel.

7. The trial court has rejected the said
application U/s 311 Cr.P.C. of the applicant
vide impugned order dated 04.10.2021 on
the ground that the question which has been
stated to be asked from Smt. Rajveeri is not
documentary evidence.

8. Learned counsel for the applicant
further submits that the trial court has not
considered the contents of the application u/s
311 Cr.P.C. dated 23.09.2021 in which he has
been categorically stated regarding the
question for cross examination from P.W.-4
Smt. Rajveeri and without considering the
same, rejected the said application u/s 311
Cr.P.C. in mechanical manner, which is
unjust, improper and bad in the eye of law.

9. Learned counsel for the applicant
further submits that since some relevant facts
had been left to be examined, therefore, reexamination of PW-4 is necessary for proper
adjudication of the trial. While exercising the
power under Section 311 Cr.P.C., paramount
consideration of the court is to do justice to
the case and court concerned can examine a
witness at any stage, even if the same results
in filling up lacuna or loop holes. Learned
counsel for the applicant lastly submits that
the impugned order may kindly be quashed
and the applicant may be permitted to cross
examine PW-4 Smt. Rajveeri in the interest
of justice.

10. Per contra, Mr. Mayank Awasthi,
learned counsel representing for the State
has opposed the submission made by the
380 INDIAN LAW REPORTS ALLAHABAD SERIES
learned counsel for the applicant by
contending that the order impugned passed
by the court below is legal and valid. The
court below has recorded pure finding of
fact while rejecting the application filed by
the applicant under Section 311 Cr.P.C. for
re-examination of P.W.-4 Smt. Rajveeri.
The court below has not committed any
error in passing the impugned order,
therefore, it does not call for any
interference by this Court. Hence, he
submits that the present application is liable
to be rejected.

11. I have considered the submissions
made by the learned counsel for the parties
and gone through the records of the present
application.

12. Before fathoming correctness of
the submissions made by the learned
counsel for the parties,
it will be
worthwhile to refer to Section 311 Cr.P.C.,
which 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 reexamine any such person if
his evidence appears to it to be essential to
the just decision of the case."

13. Assiduous scrutiny of aforesaid
provision clearly suggests that court enjoys
vast power to summon any person as a
witness or recall and re-examine a witness,
provided, same is essentially required for
just decision of the case. Moreover, such
exercise of power can be at any stage of
inquiry, trial or proceedings under the
Code, meaning thereby, applicant can file
an
application
at
any
time
before
conclusion of trial. Very object of Section
311 is to bring on record evidence not only
from the point of view of accused and
prosecution, but also from the point of view
of the orderly society.

14. 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 of Cr.P.C. 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 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
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
9 All. Pradeep Kumar Jain Vs. State of U.P. & Ors.
381
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.

15. Fair trial is the main object of
criminal procedure, and it is the duty of the
court to ensure that such fairness is not
hampered or threatened in any manner. Fair
trial entails the interest of the accused, the
victim and of the society, and therefore, fair
trial includes the grant of fair and proper
opportunities to the person concerned, and
the same must be ensured as this is a
constitutional, as well as a human right.
Thus, under no circumstances can a
person's right to fair trial be jeopardized.
Adducing evidence in support of the
defence is a valuable right. Denial of such
right would amount to the denial of a fair
trial. Thus, it is essential that the rules of
procedure that have been designed to
ensure justice are scrupulously followed,
and the court must be zealous in ensuring
that there is no breach of the same.

16. Close scrutiny of aforesaid
provision of law further suggests that
Section 311 has two parts; first part
reserves a right to the parties to move an
appropriate application for re-examination
of a witness at any stage; but definitely the
second part is mandatory that casts a duty
upon court to re-examine or recall or
summon a witness at any stage if his/her
evidence appears to be essential for just
decision of case because, definitely the
underlying object of aforesaid provision of
law is to ensure that there is no failure of
justice on account of mistake on the part of
either of parties in bringing valuable piece
of evidence or leaving an ambiguity in the
statements of witnesses examined from
either side.

17. In this backdrop, it would be
useful to make a reference to certain
decisions rendered by the Supreme Court
on the interpretation of Section 311 of the
Code, wherein the Apex Court highlighted
the basic principles which are to be borne
in mind while dealing with an application
under Section 311of the Code.

18. In Natasa Singh v. C. B. I.,
reported in (2013) 5 SCC 741, the Apex
Court, after referring the various decisions
of the Supreme Court, has observed that the
power conferred under Section 311 Cr.P.C.
must therefore, be invoked by the court
only in order to meet the ends of justice and
such power should be exercised with great
caution and circumspection.

19. The scope of Section 311 Cr.P.C.
has been dealt in the case of Raja Ram
Prasad Yadav vs. State of Bihar and
another, reported in (2013)14 SCC 461,
wherein the Apex Court has held that
power under Section 311 Cr.P.C. to
summon any person or witness or examine
any person already examined can be
exercised at any stage provided the same is
required for just decision of the case. It
may be relevant to take note of the
following paras of the judgment:-

"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 re-examine any witness already
examined. A reading of the provision shows
that the expression "any" has been used as
a pre-fix to "court", "inquiry", "trial",
382 INDIAN LAW REPORTS ALLAHABAD SERIES
"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 pre-fix 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.
Order of re-examination is also prescribed
calling for such a witness so desired for
such re-examination. Therefore, a reading
of Section 311 Cr.P.C. 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 reexamine any 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."

20. In this context, I also wish to
make a reference to the judgment of the
Apex Court in Mannan SK and others vs.
State of West Bengal and another reported
in AIR 2014 SC 2950, wherein the the
Apex Court Court has held as under:-

"10. The aim of every court is to
discover truth. Section 311 of the Code is
one of many such provisions of the Code
which strengthen the arms of a court in its
effort to ferret out the truth by procedure
sanctioned by law. It is couched in very
wide terms. It empowers the court at any
stage of any inquiry, trial or other
proceedings under the Code to summon
any person as a witness or examine any
person
in
attendance,
though
not
summoned as witness or recall and reexamine already examined witness. The
second part of the Section uses the word
'shall'. It says that the court shall summon
and examine or recall or re-examine any
such person if his evidence appears to it to
be essential to the just decision of the case.
The words 'essential to the just decision of
the case' are the key words. The court must
form an opinion that for the just decision of
the case recall or reexamination of the
witness is necessary. Since the power is
wide it's exercise has to be done with
circumspection. It is trite that wider the
power greater is the responsibility on the
courts which exercise it. The exercise of
this power cannot be untrammeled and
9 All. Pradeep Kumar Jain Vs. State of U.P. & Ors.
383
arbitrary but must be only guided by the
object of arriving at a just decision of the
case. It should not cause prejudice to the
accused.
It
should
not
permit
the
prosecution to fill-up the lacuna. Whether
recall of a witness is for filling-up of a
lacuna or it is for just decision of a case
depends on facts and circumstances of each
case. In all cases it is likely to be argued
that the prosecution is trying to fill-up a
lacuna because the line of demarcation is
thin. It is for the court to consider all the
circumstances and decide whether the
prayer for recall is genuine."

21. Further in the case of V.N. Patil
vs. K. Niranjan Kumar and Ors. reported
in (2021) 3 SCC 661 wherein the Apex
Court has held that the aim of every Court
is to discover the truth. Section 311 Cr.P.C.
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 Cr.P.C. has to be exercised judiciously
for strong and valid reasons and with
caution and circumspection to meet the
ends of justice.

22. The principles related to the
exercise of the power under Section 311
Cr.P.C. have been well settled by this Court
in Vijay Kumar vs. State of Uttar Pradesh
and Another, reported in 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."

10.

23. This principle has been further
reiterated in Mannan Shaikh and Others
vs. State of West Bengal and Another,
reported in 2014 (13) SCC 59 and
thereafter in the case of Ratanlal vs.
Prahlad Jat and Others, 2017 (9) SCC 340
and Swapan Kumar Chatterjee vs. 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 reexamine 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 reexamine 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
384 INDIAN LAW REPORTS ALLAHABAD SERIES
and it should be exercised with great
caution and circumspection. The court has
vide power under this section to even recall
witnesses for reexamination 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."

24. Aforesaid exposition of law
clearly suggests that a fair trial is main
object of criminal jurisprudence and it is
duty of court to ensure such fairness is not
hampered or threatened in any manner. It
has been further held in the aforesaid
judgments that fair trial entails interests of
accused, victim and society and therefore,
grant of fair and proper opportunities to the
persons concerned, must be ensured being a
constitutional goal, as well as a human
right. The Apex Court has categorically
held in the aforesaid judgment that
adducing evidence in support of the
defence is a valuable right and denial of
such right would amount to denial of a fair
trial.

25. The Apex Court, while culling out
certain principles required to be borne in
mind by the courts while considering
applications under Section 311, has held
that exercise of widest discretionary powers
under Section 311 should ensure that
judgment should not be rendered on
inchoate, inconclusive and speculative
presentation of facts. Hon'ble Apex Court
has further held that if evidence of any
witness appears to be essential for the just
decision of the case, it is the duty of the
court to summon and examine or recall and
re-examine any such person because very
object of exercising power under Section
311 is to find out truth and render a just
decision. Most importantly, in the judgment
referred to herein above, the Apex Court
has held that court should bear in mind that
no party in trial can be foreclosed from
correcting errors and that if proper
evidence was not adduced or a relevant
material was not brought on record due to
any inadvertence, the Court should be
magnanimous in permitting such mistakes
to be rectified.

26. From perusal of the records of the
present application and applications filed
by the application under Section 311
Cr.P.C. as well as from examining the
order impugned, it is an admitted position
that the P.W. No.4 has already been
examined and cross-examined. The plea of
the applicant for summoning P.W. No.4,
Smt. Rajveeri for further cross-examination
has only been taken to be rejected on the
ground that the question which has been
stated to be asked from P.W-4 Smt.
Rajveeri is not documentary evidence.
From the application made by the applicant
under Section 311 Cr.P.C., it is apparently
clear that the same has been filed only for
lingering on the trial of the case.

27. The fairness of trial has to be seen
not only from the point of view of the
victim, but also from the point of view of
the accused and the society. It is not
possible to lay down precise situations
when such power can be exercised. The
Legislature in its wisdom has left the power
undefined. Thus, the scope of power under
Section 311 Cr.P.C. has to be considered
from case to case.

28. The accused cannot have the
witness recalled for re-examination as a
matter of right and extraordinary provision
9 All. Amar Dayal Singh Vs. State of U.P. & Anr.
385
cannot be used as an afterthought to fill the
gaps.

29. Considering the materials brought
on record and keeping the principles laid
down by the Hon'ble Supreme Court for
exercise of power under section 311
Cr.P.C., this Court is of the opinion that
observations and findings recorded by the
trial Court in rejecting the application
under Section 311 Cr.P.C. of the applicant
under the facts and circumstances of the
case are fully sustainable. The trial Court
has committed no illegality or infirmity in
the order impugned by rejecting the
application of the applicant. There appears
no abuse of process of the Court also.
There is no evidence on record to satisfy
this Court that trial would be seriously
prejudiced if the said witnesses is not
recalled for re-examination or further
examination.

30. In view of the above, the
application of the applicant having no merit
deserves to be rejected. In the result, the
application is rejected.

31. The office is directed to
communicate this order to the court
concerned to proceed with the case in
accordance with law.

32. The Court would like to
appreciate the hard work put in by Mr. Hari
Harsh Gaur, Law Clerk, who has drawn
attention to detail and the same shows in
his work of providing legal assistance in
this matter.
----------
(2022) 9 ILRA 385
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.07.2022

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Misc. Application U/S 482 No. 22092 of
2021

Amar Dayal Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Hari Nath Chaubey

Counsel for the Opposite Parties:
G.A., Sri Anil Kumar Ray

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
482
-
Companies
Act,
2013-Section
452Quashing of summoning order-Applicant
was appointed as an employee of M/s
Hindalco Industries Ltd., later he was
dismissed from service-After dismissal,
he had to leave company's quarter
allotted to him-After several reminders
and final notice, a complaint was filedFunds for which the applicant was
entitled, was already paid to him with
interest, but the applicant was illegally
withholding the same-Hence, the Court
below rightly summoned the applicant
u/s
452
of
the
Companies
Act,
2013.(Para 1 to 20)

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

1. Beer Bala Gupta Vs 15th Addl. Session Judge,
Meerut (2002) 0 Supreme(All) 307

2. Jagdish Chandra Nijhawan Vs S.K. Saraf
(1999) 1 SCC 119

3. Gopika Chandrabhushan Saran &anr. Vs M/s
XLO India Ltd. & anr.. (2009) 3 SCC 342,

4. St. of Har. & ors. Vs Bhajan Lal & ors. (1992)
Suppl. 1 SCC 335

5. Ramveer Upadhyay & anr.. Vs St. of U.P. &
anr.. (2022) LiveLaw SC 396