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

- **Citation:** (2025) 1 ILRA 260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-02
- **Case number:** Application U/S 482 No. 30740 of 2024
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/premanshu-v-state-of-u-p-anr-54882
- **Pages:** 10

## Headnote

Law
-
Code
of
Criminal
Procedure1973 - Section 311-Application
u/s 311 Cr.P.C. by the applicant for examination
of P.W.-3 rejected-impugned- accused cannot
have the witness recalled for re-examination as
a matter of right - extraordinary provision
cannot be used as an afterthought to fill the
gaps- no illegality or infirmity in the order.

Application dismissed. (E-9)

List of Cases cited:

## Text

260 INDIAN LAW REPORTS ALLAHABAD SERIES

16. From the conjoint reading of Section
256 Cr.P.C. (corresponding Section 279 of
BNSS) and Section 302 Cr.P.C. (corresponding
Section 339 of BNSS) as well as legal position
discussed above, it is clear that after the death of
the complainant, his legal heir may be
permitted to continue the proceeding u/s 138 of
the Act, 1881 personally or through pleader or
through the power of attorney holder, though,
there is no requirement of substitution or
impleading the legal heir of the deceased
complainant. Therefore, it is not always
necessary for the concerned court to dismiss the
complaint u/s 256 Cr.P.C. If the complainant
failed to appear for any reason, it may postpone
the hearing and if the application is filed by the
legal heir of the complainant to pursue the
complaint proceeding on the ground that the
complainant has died, court should normally
permit the legal heir of the complainant to
pursue the same.

17. Therefore the contention of learned
counsel for the applicant that court below has
erroneously permitted the son of the complainant
after his death to pursue the complaint proceeding is
also misconceived.

18. Third contention of learned counsel for
the applicant that cheque in question was a
missing cheque regarding which applicant has
also filed police complaint is also misconceived
and there is nothing on record showing that any
application was given to bank for stopping the
payment of the cheque in question if same had
been lost. Even otherwise, this ground being
defence would be available to the applicant
during trial.

19. So far as the fourth contention that the
demand notice was sent at the incorrect address is
concerned that can also be raised by the applicant
during trial being his defence as the Apex Court in
the case of D. Vinod Shivappa Vs. Nanda
Belliappa reported in (2006) 6 SCC 456 has
observed that issue of service of notice is essentially
a question of fact and can be examined during trial.

20. It is also apposite to mention that the
cheque in question was returned with the
endorsement 'account closed'. The Apex Court in
the case of Lafarge Aggregates And Concrete
India Private Ltd. Vs. Sukarsh Azad And
Another reported in 2014 (13) SCC 779 as well
as in the case of Vijay Kumar Vs. State of U.P. &
Another in Application u/s 482 No.17464 of
2024 vide order dated 23.05.2024, has observed
that even if the cheque is returned with the
endorsement 'account closed', even then the
proceeding cannot be quashed, because the defence
of closing the account for valid reason can be raised
during trial.

21. It also appears from perusal of the record
that the impugned proceeding has been pending
since 2018 and that applicant has not appeared
before the court below to contest the trial and raise
all grounds available to him.

22. In view of the above, this court does not
find any illegality in the impugned order.

23. Accordingly, present application is
rejected.
---------
(2025) 1 ILRA 260
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.01.2025

BEFORE

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

Application U/S 482 No. 30740 of 2024

Premanshu ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
1 All. Premanshu Vs. State of U.P. & Anr.
261
P.K. Singh

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure1973 - Section 311-Application
u/s 311 Cr.P.C. by the applicant for examination
of P.W.-3 rejected-impugned- accused cannot
have the witness recalled for re-examination as
a matter of right - extraordinary provision
cannot be used as an afterthought to fill the
gaps- no illegality or infirmity in the order.

Application dismissed. (E-9)

List of Cases cited:

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

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

3. Mannan SK & ors. Vs St. of W.B. & anr., AIR
2014 SC 2950

4. V.N. Patil Vs K. Niranjan Kumar & ors.,
reported in (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 (13) SCC 59

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

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

9. St. (NCT of Delhi) Vs Shiv Kumar Yadav
(2016) 2 SCC 402

10. Manju Devi Vs St. of Raj., reported in (2019)
6 SCC 203

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

1. Heard Mr. Rajeev Singh, Advocate
holding brief of Mr. P.K. Singh, learned
counsel for the applicant as well as Mr.
Rizwan Ahmad, learned A.G.A. for the
State and perused the record.

2. The present application has been
filed assailing the order dated 16.06.2023
vide which the application under Section
311 Cr.P.C. as moved by the applicant for
examination of P.W.-3 has been rejected.

3. Learned counsel for the applicant
submits that the impugned order has been
passed without application of judicial mind.
During examination of P.W.-3 certain
relevant questions which were important
for proper adjudication of the matter could
not be asked by the lawyer of the applicant,
therefore, it would have been appropriate
for the Court to allow the application
permitting examination of P.W.-3. The
order impugned has been passed in an
illegal and arbitrary manner, therefore, the
same may be set-aside.

4. Learned A.G.A for the State on the
other hand submits that there is no illegality
in the order dated 16.06.2023 as after
detailed discussion and application of
judicial mind, the order impugned has been
passed. He further submits that the present
application
requesting
for
crossexamination of P.W.-3 has been given on
27.04.2023 that too after recording the
statements of the witnesses as well as the
accused under Section 313 I.P.C. and the
matter has been fixed for hearing. From the
records, the court concerned found that
15.04.2022 was the date fixed for recording
the statements under Section 313 I.P.C. He
further submits that the statements of
accused Premanshu and Smt. Mithlesh
were recorded and they were crossexamined. Three persons from the side of
262 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused were also examined. The crossexamination of the said witnesses from the
side of the accused took place from the
period 23.04.2022 till 27.08.2022. The
accused persons stated that they do not
want to produce any other witness for
proving their case, therefore, the matter
was fixed for hearing. On 22.12.2022 an
application was given from the side of the
accused for summoning P.W.-4 which was
allowed and P.W.-4 was re-examined on
16.01.2023.

5. He further contends that nine
witnesses have been produced from the
side of the prosecution who have been
examined and cross-examined by a number
of lawyers from the side of the accused
namely Om Narayan Dwivedi, Ashok
Kumar Trivedi, Dinesh Kumar Pal, Anil
Kumar Sachan and Siddharth Verma.
Vakalatmama of Sri. Rambahal Vidyarthi
was also found in the record of the case.
The newly appointed lawyer Sri. Rambahal
Vidyarthi
moved
an
application
on
27.04.2023 for summoning of P.W.-3 as
certain important questions could not be
asked from him at the time when he was
examined. The court found that the chief
examination of P.W.-3 Rambhawan took
place on 31.05.2018 and he was crossexamined on the same date. The crossexamination continued on 04.07.2018 and
was completed on the said date. The crossexamination is of about three pages. All
questions regarding harassment of the
deceased, the money as well as gifts which
were given as tilak and other questions
related to harassment were also asked from
P.W.-3. From the aforestated, it is clear that
the applicant is trying to linger on the case
by changing the lawyer. Earlier also an
application was moved for summoning
P.W.-4 which was allowed and he has been
re-examined.

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

7. 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."

8. 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.

9. 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
1 All. Premanshu Vs. State of U.P. & Anr.
263
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
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.

10. 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.

11. 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.

12. 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 311 of the Code.

13. In Natasa Singh v. C. B. I.,
reported in (2013) 5 SCC 741, the Apex
Court, after referring the various decisions
264 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

14. 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", "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 re-examine 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."

15. 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
1 All. Premanshu Vs. State of U.P. & Anr.
265
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
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."

16. 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.

17. 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."

18. 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
266 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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."

19. In the case of State (NCT of
Delhi) vs. Shiv Kumar Yadav (2016) 2
SCC 402, the Apex Court has observed that
recall of a witness under Section 311 must
be bona fide and genuine. Secondly,
applications for recall of a witness under
Section 311 should not be allowed as a
matter of course and the discretion given to
the Court must be exercised judiciously,
not arbitrarily.

20. The Apex Court in the case of
Manju Devi v. State of Rajasthan, reported
in (2019) 6 SCC 203 has held as under :-

"10. It needs hardly any emphasis
that the discretionary powers like those
under Section 311 CrPC are essentially
intended to ensure that every necessary and
appropriate measure is taken by the Court
to keep the record straight and to clear any
ambiguity insofar as the evidence is
concerned as also to ensure that no
prejudice is caused to anyone. The
principles underlying Section 311 CrPC
and amplitude of the powers of the court
thereunder have been explained by this
Court in several decisions [ Vide Mohanlal
Shamji Soni v. Union of India, 1991 Supp
(1) SCC 271 : 1991 SCC (Cri) 595; Zahira
Habibulla H. Sheikh v. State of Gujarat,
(2004) 4 SCC 158 : 2004 SCC (Cri) 999;
Mina Lalita Baruwa v. State of Orissa,
(2013) 16 SCC 173 : (2014) 6 SCC (Cri)
218; Rajaram Prasad Yadav v. State of
Bihar, (2013) 14 SCC 461 : (2014) 4 SCC
(Cri) 256 and Natasha Singh v. CBI, (2013)
5 SCC 741 : (2013) 4 SCC (Cri) 828] . In
Natasha Singh v. CBI [Natasha Singh v.
CBI, (2013) 5 SCC 741 : (2013) 4 SCC
(Cri) 828] , 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 reexamine any person who has already been
examined if his evidence appears to it, to be
1 All. Premanshu Vs. State of U.P. & Anr.
267
essential to the arrival of a just decision of
the case. Undoubtedly, CrPC has conferred
a very wide discretionary power upon the
court in this respect, but such a discretion is
to be exercised judiciously and not
arbitrarily. The power of the court in this
context is very wide, and in exercise of the
same, it may summon any person as a
witness at any stage of the trial, or other
proceedings. The court is competent to
exercise such power even 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.
***

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."

21. 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.

22. 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
268 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

23. From perusal of the records of the
present application and application filed by
the applicant under Section 311 Cr.P.C. as
well
as
from
examining
the
order
impugned, this Court finds that during trial,
the present application requesting for crossexamination of P.W.-3 has been given on
27.04.2023 that too after recording the
statements of the witnesses as well as the
accused under Section 313 I.P.C. and the
matter has been fixed for hearing. From the
records, the court concerned found that
15.04.2022 was the date fixed for recording
the statements under Section 313 I.P.C. The
statements of accused Premanshu and Smt.
Mithlesh were recorded and they were
cross-examined. Three persons from the
side of the accused were also examined.
The
cross-examination
of
the
said
witnesses from the side of the accused took
place from the period 23.04.2022 till
27.08.2022. The accused persons have
stated before the court concerned that they
do not want to produce any other witness
for proving their case, therefore, the matter
was fixed for hearing. On 22.12.2022 an
application was given from the side of the
accused for summoning P.W.-4 which was
allowed and P.W.-4 was re-examined on
16.01.2023. Nine witnesses have been
produced from the side of the prosecution
who have been examined and crossexamined. Vakalatmama of Sri. Rambahal
Vidyarthi was also found in the record of
the case. The newly appointed lawyer Sri.
Rambahal Vidyarthi moved an application
on 27.04.2023 for summoning of P.W.-3 as
certain important questions could not be
asked from him at the time when he was
examined. The court found that the chief
examination of P.W.-3 Rambhawan took
place on 31.05.2018 and he was crossexamined on the same date. The crossexamination continued on 04.07.2018 and
was completed on the said date. 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.

24. 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.

25. 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.

26. 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
1 All. Jitendra & Ors. Vs. State of U.P. & Anr.
269
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.

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

28.
The
office
is
directed
to
communicate this order to the court
concerned to proceed with the case in
accordance with law.

29. The Court would like to appreciate
the hard work put in by Ms. Shreya Shukla,
Research
Associate,
who
has
drawn
attention to detail and the same shows in
her work of providing legal assistance in
this matter.
---------
(2025) 1 ILRA 269
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.01.2025

BEFORE

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

Application U/S 482 No. 40201 of 2024

Jitendra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Aditya Prasad Mishra

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code,1860 -
Chapter
XX
-
Code
of
Criminal
Procedure,1973 - Section 198 (1)-No
cognizance u/s 198(1) Cr.P.C. -for an offence
punishable under Chapter-XX of IPC except
upon a complaint made by some person
aggrieved by the offence- whereupon the
Magistrate shall follow the procedure u/s 200
Cr.P.C. onwards -but it does not include the
police report i.e. a report under Section 173(2)
Cr.P.C-in the explanation to Section 2(d) of
Cr.P.C., a report by a police officer which
discloses a non-cognizable offence shall be
deemed to be complaint but this explanation is
not applicable under Chapter XX of IPC- no
complaint
in
the
present
case-
hence
chargesheet
itself
is
not
maintainable
-
cognizance order is vitiated- the procedure as
required not followed-impugned order rejected.

Application allowed. (E-9)

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

1. The applicants have preferred
instant application under Section 482
Cr.P.C. challenging the charge sheet dated
10.04.2024,
cognizance
order
dated
19.07.2024 passed by Chief Judicial
Magistrate, Mathura and proceedings of
Criminal Case No. 63822 of 20241 arising
out of Case Crime No. 402 of 2023, under
Section 494 and 120-B IPC, Police Station
Jait, District Mathura.

2. Brief facts of the case are that a first
information report2 was lodged by opposite
party no. 2 on 30.09.2023 against 10 named
persons including the applicants, under
Sections 494 and 120-B IPC, alleging
therein that marriage of applicant no. 1 was