# process of Court, Apex Court, in the case of Dhanlakshmi v. R.Prasana Kumar

- **Citation:** (2020) 12 ILRA 194
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-18
- **Case number:** Application U/S 482 No. 13126 of 2020
- **Bench:** Deepak Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/process-of-court-apex-court-in-the-case-of-dhanlakshmi-v-r-prasana-kumar-45456
- **Pages:** 7

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Section 311- The power conferred
under Section 311 Cr.P.C. must 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 powers under Section 311 Cr.P.C. is
the discretion or the obligation of the
Court to summon or recall a witness, but
this discretion of the Court cannot be
forced to be used by the accused or the
prosecution. Applicant here is sister of
deceased, who is not the informant nor
the witness in the case and prosecution
has examined P.W.1, who is real brother
and eye witness of the deceased. In
application, no reason has been given as
to why earlier, application for examination
of witness has not been moved and what
is relevancy of his examination. The
prosecution was given much opportunity
to produce evidence and prosecution
examined all the witness to whom he
wanted to be examined but when Hon'ble
High Court passed the order for expedite
the trial then to linger on the case, moved
present application under Section 311
Cr.P.C. It is well settled law that under
Section 311 Cr.P.C. cannot be invoked
mere to fill up lacuna of the case but to
fair and just decision of the case.

No indefeasible right accrues to the prosecution
or the defence for examining a witness u/s 311
of the Cr.Pc, as the said power is the discretion
of the Court which must be exercised for the
just decision of the case and not for allowing
the prosecution to fill up the lacunae in its case
or
for
delaying
the
trial.
12 All. Smt. Asha Vs. State of U.P.
195
Criminal Application rejected. (Para 17) (E-3)

Judgements/ Case laws cited :-

## Text

194 INDIAN LAW REPORTS ALLAHABAD SERIES
justice. It can do so while exercising other
jurisdictions such as appellate or revisional
jurisdiction. No formal application for
invoking inherent jurisdiction is necessary.
Inherent jurisdiction can be exercised in
respect of substantive as well as procedural
matters. It can as well be exercised in
respect of incidental or supplemental power
irrespective of nature of proceedings".

9. Regarding prevention of abuse of
process of Court, Apex Court, in the case of
Dhanlakshmi
v.
R.Prasana
Kumar,
(1990) Cr LJ 320 (DB): AIR 1990 SC
494, has propounded "To prevent abuse of
the process of the Court, High Court, in
exercise of its inherent powers under
section 482, could quash the proceedings,
but, there would be justification for
interference only when the complaint did
not disclose any offence or was frivolous
vexatious or oppressive" as well as in the
case of State of Bihar v. Murad Ali Khan,
(1989) Cr LJ 1005: AIR 1989 SC 1, Apex
Court
propounded
"In
exercising
jurisdiction under Section 482 High Court
would not embark upon an enquiry whether
the allegations in the complaint are likely
to
be
established
by
evidence
or
not".Meaning thereby, exercise of inherent
jurisdiction under Section 482 Cr.P.C. is
within the limits, propounded as above.

10. In view of what has been
discussed above, this Application, under
Section 482 of Cr.P.C., merits dismissal
and it stands dismissed accordingly.
----------
(2020)12ILR A194
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2020

BEFORE

THE HON'BLE DEEPAK VERMA, J.
Application U/S 482 No. 13126 of 2020

Smt. Asha ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Raghuraj Kishore

Counsel for the Opp. Party:
A.G.A.

Criminal Law- Code of Criminal Procedure,
1973- Section 311- The power conferred
under Section 311 Cr.P.C. must 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 powers under Section 311 Cr.P.C. is
the discretion or the obligation of the
Court to summon or recall a witness, but
this discretion of the Court cannot be
forced to be used by the accused or the
prosecution. Applicant here is sister of
deceased, who is not the informant nor
the witness in the case and prosecution
has examined P.W.1, who is real brother
and eye witness of the deceased. In
application, no reason has been given as
to why earlier, application for examination
of witness has not been moved and what
is relevancy of his examination. The
prosecution was given much opportunity
to produce evidence and prosecution
examined all the witness to whom he
wanted to be examined but when Hon'ble
High Court passed the order for expedite
the trial then to linger on the case, moved
present application under Section 311
Cr.P.C. It is well settled law that under
Section 311 Cr.P.C. cannot be invoked
mere to fill up lacuna of the case but to
fair and just decision of the case.

No indefeasible right accrues to the prosecution
or the defence for examining a witness u/s 311
of the Cr.Pc, as the said power is the discretion
of the Court which must be exercised for the
just decision of the case and not for allowing
the prosecution to fill up the lacunae in its case
or
for
delaying
the
trial.
12 All. Smt. Asha Vs. State of U.P.
195
Criminal Application rejected. (Para 17) (E-3)

Judgements/ Case laws cited :-

1. Shailendra Kumar Vs St. of Bih, AIR 2002
Supreme Court 270 (cited)

2. Hanuman Ram Vs St. of Raj. & ors. 2009 (64)
ACC 895

3. Vijay Kumar Vs St. of U.P & ors. (2011) 11
SCR Page 893

4. Darya Singh & ors. Vs St. of Punj., AIR 1965
SC 328

5. Moirangthem Tomba Singh Vs St. of Manipur,
1984 Cr.L.J. 536

6. Natasha Singh Vs C.B.I., 2013 (2) UPCr.R 605

(Delivered by Hon'ble Deepak Verma, J.)

1. Learned AGA has filed counter
affidavit today, which is kept on record.

2. Learned counsel for the applicant
refused to file rejoinder affidavit.

3. Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the record.

4. This application under Section 482,
Cr.P.C. has been filed to quash the order
dated 24.02.2020 passed by Additional
Sessions Judge, Court No.3, Saharanpur in
S.T. No.605 of 2015, Crime No.169 of
2014 filed under Sections 147, 148, 149,
302, 120-B I.P.C., Police Station Kotwali,
District Saharanpur.

5. It is contended by learned counsel
for the applicant that F.I.R. was lodged by
brother of the deceased, namely, Sanjai on
02.05.2014 at 02:30 pm registered as Case
Crime No.169 of 2014, under Sections 147,
148, 149, 302, 120-B I.P.C. alleged therein
that deceased Arvind @ Sheri, who was
shot dead while he was driving his Activa
Scooty. The Investigating Officer submitted
that during trial, informant Sanjai Badhawa
(eyewitness) had been examined as P.W. 1.
Investigating Officer submitted his chargesheet in which he has shown 34 witnesses.
Rahul Kumar son of Virendra, R/o H/20
Numaish Camp Kotwali, Saharanpur is
named as witness at Serial No.13 in charge
sheet. He further submitted that witnessRahul in his statement recorded under
Section 61 Cr.P.C. has stated and supported
the prosecution story but inadvertently the
prosecution could not examine him during
trial and, therefore, the applicant moved an
application under Section 311 Cr.P.C. on
24.02.2020 to examine the Rahul in the
case. He next submitted that in entire case
except Rahul, all other witnesses are of
conspirator are of formal in nature. The
application under Section 311 Cr.P.C. is not
to fill up the lacuna to strengthen the
prosecution case or it will cause prejudice
to the defence in any manner.

6. Learned counsel for the applicant
has placed reliance over para 9 and 11 of
the judgment of Hon'ble Apex Court passed
in the case of Shailendra Kumar Vs. State
of Bihar, AIR 2002 Supreme Court 270,
para 9 and 11 are as follows:

9. In our view, in a murder trial it
is sordid and repulsive matter that without
informing the police station officer-incharge, the matters are proceeded by the
Court and by the APP and tried to be
disposed of as if the prosecution has not led
any evidence. From the facts stated above,
it appears that accused wants to frustrate
the prosecution by unjustified means and it
appears that by one way or the other the
Additional Sessions Judge as well as the
APP have not taken any interest in
196 INDIAN LAW REPORTS ALLAHABAD SERIES
discharge of their duties. It was the duty of
the Sessions Judge to issue summons to the
investigating officer if he failed to remain
present at the time of trial of the case. The
presence of investigating officer at the time
of trial is must. It is his duty to keep the
witnesses present. If there is failure on part
of any witness to remain present, it is the
duty of the Court to take appropriate action
including issuance of bailable/non-bailable
warrants as the case may be. It should be
well understood that prosecution cannot be
frustrated by such methods and victims of
the crime cannot be left in lurch.

11. Bare reading of the aforesaid
section reveals that it is of very wide
amplitude and if there is any negligence,
latches or mistakes by not examining
material witnesses, the Courts function to
render just decision by examining such
witnesses at any stage is not, in any way,
impaired. This Court in Rajendra Prasad
Vs. Narcotic Cell [(1999) 6 SCC 110]
observed, After all, function of the criminal
court is administration of criminal justice
and not to count errors committed by the
parties or to find out and declare who
among the parties performed better.

7. Per contra, learned AGA opposed the
submission of learned counsel for the
applicant and contended that charge-sheet
No.92 of 2014 was submitted on 23.07.2014
in the present case in which there was 36
witnesses were recorded. The first informant
Sanjai (brother of deceased) was at Serial
No.1 and the name of witness-Rahul Kumar
placed at Serial No.13 and Sanjai (P.W. 1) is
eyewitness of the present case. During
investigation he was recorded, as such, he is
witness in the case but further submitted that
it is well settled law that during trial the
prosecution can examine as many as
witnesses as it deem fit. In the present case 11
prosecution witnesses have been examined
and proceedings under Section 313 Cr.P.C.
had already been recorded and prosecution
evidence has been closed and case had been
fixed for argument. He further submitted that
the present applicant is not the informant nor
eye
witness
in
the
proceedings
and
application filed by him is not showing
cogent reason to persuade the trial court to
exercise its power under Section 311 Cr.P.C.
Moresoever, the applicant-Smt. Asha is
merely a pairokar/sister of deceased and she
is not first informant of the present case. The
first informant has already been examined by
the trial court and he claimed himself to be an
eye witness and is real brother of the
deceased.
He
further
submitted
that
prosecution had produced 11 witnesses in the
present case to prove its case and case is fixed
for argument. It is well settled law that under
Section 311 Cr.P.C. cannot be invoked mere
to fill up any lacuna. He further informed the
Court that while rejecting the third bail of the
accused-Sunny @ Cheeda this Court vide
order dated 18.01.2018 directed the trial court
to expedite the trial of the present case and
conclude the same within a period of eight
months from the said date. Again while
rejecting the fourth bail application No.43588
of 2019 of accused Sunny @ Cheeda this
Court vide order dated 13.12.2019 again
directed to expedite the trial and conclude the
same within a period of two months from the
date of production of certified copy of the
order and the impugned order passed by trial
court is just and proper and based upon
consideration of each and every aspect and
order does not suffer from any irregularities
or illegality.

8. The Section 311 Cr.P.C. are
reproduced herein below:

"311.
Power
to
summon
material witness or examine person
present - Any Court may, at any stage of
12 All. Smt. Asha Vs. State of U.P.
197
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. A bare perusal of Section goes to
show that it is divided in two parts. In the first
part, the word used is "may" and thereby
giving jurisdiction to the Court to pass order as
per its discretion and the second part uses the
word "shall" which makes obligatory for the
Court to pass such order. The provision of
Section 311 Cr.P.C.,
thus,
first
is
a
supplementary provisions enabling and in
certain circumstances imposition on the Court
with the duty of examining a material witness
who could not brought before it. It is couched
in the widest possible terms and clause for non
limitation either with regard to the stage of the
trial nor with regard to the manner, it should be
exercised.

10. It is true that the power of the
Court under Section 311 Cr.P.C. is of a very
wide in nature but in what manner such
power should be exercised has been a
matter of discretion before the superior
Courts.

11. In the case of Hanuman Ram vs.
State of Rajasthan and others 2009 (64)
ACC 895, the Hon'ble the Apex Court has
laid down as to what is the object of the
Section 311 Cr.P.C and how the discretion
provides thereunder should be exercised.
Para 6 of the judgment reads as follows:

"The object underlying section
311 of the Code 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 section is not limited only
for the benefit of the accused, and it will
not be an improper exercise of the powers
of the Court to summon a witness under the
section merely because the evidence
supports the case for the prosecution and
not that of the accused. The section is a
general section which applies to all
proceedings, enquiries and trials under the
Code and empowers Court to issue
summons to any witness at any stage of
such proceedings, trial or enquiry. In
section 311 the significant expression that
occurs is "at any stage of inquiry or trial or
other proceeding under this Code". It is,
however, to be borne in mind that whereas
the section confers a very wide power on
the Court on summoning witnesses, the
discretion conferred is to be exercised
judiciously, as wide the power the greater is
the necessity for application of judicial
mind."

12. Again in the case of Vijay Kumar
vs State of U.P and others (2011) 11 SCR
Page 893, the Hon'ble the Apex Court has
held as follows:

"It
is
hardly
needs
to
be
emphasized that power under Section 311
should be exercised for the just decision of
the case. The wide discretion conferred on
the court to summon a witness must be
exercised judicially, as wider the power, the
greater is the necessity for application of
the judicial mind. Whether to exercise the
power or not would largely depend upon
the facts and circumstances of each case.
As is provided in the Section, power to
198 INDIAN LAW REPORTS ALLAHABAD SERIES
summon any person as a witness can be
exercised if the court forms an opinion that
the examination of such a witness is
essential for just decision of the case."

At another place of the same
judgment the following observation has
been made by Hon'ble the Apex Court:

"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 of 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."

The Apex Court while upholding
as above observed that in the application to
recall the witnesses, no specific reasons
were mentioned as to how the examination
of the witnesses proposed to be summoned
was necessary and arrived at the conclusion
and after discretion that the power under
section 311 of the Code of Criminal
Procedure 1973 were exercised arbitrarily
by the Court."

13. In Darya Singh and others Vs.
State of Punjab, AIR 1965 SC 328 a Full
Bench of the Apex Court has held as
under:-

"In our opinion, this argument is
entirely misconceived. It is well settled that
in a murder case, it is primarily for the
prosecutor to decide which witnesses he
should examine in order to unfold his story.
It is obvious that a prosecutor must act
fairly and honestly and must never adopt
the device of keeping back from the Court
eye-witnesses only because their evidence
is likely to go against the prosecution case.
The duty of the prosecutor is to assist the
court in reaching a proper conclusion in
regard to the case which is brought before
it for trial. It is no doubt open to the
prosecutor not to examine witnesses who,
in his opinion have not witnessed the
incident, but normally he ought to examine
all the eye-witnesses in support of his case.
It may be that if a large number of persons
have witnessed the incident, it would be
open to the prosecutor to make a selection
of those witnesses, but the selection must
be made fairly and honestly and not with a
view to suppress inconvenient witnesses
from the witness-box. If at the trial it is
shown that persons who had witnessed the
incident have been deliberately kept back,
the Court may draw an inference against
the prosecution and may, in a proper case,
regard the failure of the prosecutor to
examine the said witnesses as constituting a
serious infirmity in the proof of the
prosecution case. In such a case if the ends
of justice require, the Court may even
examine such witnesses by exercising its
power under Section 540; but to say that in
every murder case, the Court must
scrutinise the police diary and make a list
of witnesses whom the prosecutor must
examine is virtually to suggest that the
Court should itself take the role of a
prosecutor. The powers of the Court under
Sectino 540 can and ought to be exercised
in the interests of justice whenever the
Court feels that the interests of justice so
require, but that does not justify Mr.
Bhasin's contention that the failure of the
Court to have exercised its power under
Section 540 has introduced a serious
infirmity in the trial itself."

14. In Moirangthem Tomba Singh
Vs. State of Manipur, 1984 Cr.L.J. 536 it
has been observed as under:-
12 All. Smt. Asha Vs. State of U.P.
199

"That apart as submitted by the
learned public prosecutor, reviewing on the
decision Darya Singh v. State of Punjab (AIR
1965 SC 328) : 1965 (1) Cri LJ 350). The duty
of the prosecution is normally to examine all
the eye-witnesses but if the selection was made
fairly and honestly and not with a view to
suppress inconvenient witness from the witness
box no adverse inference could be drawn
against the prosecution."

15. The Hon'ble Apex Court in the
case of Natasha Singh Vs. C.B.I., reported
in 2013 (2) UPCr.R 605, has stated that 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 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.

16. From perusal of Hon'ble Apex
Court judgment cited by applicant's counsel
it is very much clear that fact of the case is
entirely different from the present factual
disputes.

17. The powers under Section 311
Cr.P.C. is the discretion or the obligation of the
Court to summon or recall a witness, but this
discretion of the Court cannot be forced to be
used by the accused or the prosecution. While
considering the present case it is clear that on
behalf of the deceased sister an application
under Section 311 Cr.P.C. had been moved in
which no ground at all were brought forward
as to why the witness needs to be summoned
for examination whereas P.W.1 who is eye
witness has been examined and cross
examined. Applicant here is sister of deceased,
who is not the informant nor the witness in the
case and prosecution has examined P.W.1,
who is real brother and eye witness of the
deceased. There are 36 witnesses whose
statements
have
been
recorded
by
Investigating Officer. All are not required to be
examined. Prosecution has to consider which
witness has to be produced and to be
examined. Out of 36 witness, 11 prosecution
witnesses
have
been
examined
and
prosecution evidence have been closed. The
Hon'ble High Court while rejecting bail
application of accused, directed the court
below to conclude the trial expeditiously
within a period of two months from the date of
production of certified copy of this order. In
application, no reason has been given as to
why earlier, application for examination of
witness has not been moved and what is
relevancy of his examination. The prosecution
was given much opportunity to produce
evidence and prosecution examined all the
witness to whom he wanted to be examined
but when Hon'ble High Court passed the order
for expedite the trial then to linger on the case,
moved present application under Section 311
200 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C. It is well settled law that under Section
311 Cr.P.C. cannot be invoked mere to fill up
lacuna of the case but to fair and just decision
of the case.

18. In the end, I do not find any illegality
in
the
impugned order
requiring
any
interference by this Court in exercise of
inherent power under Section 482 Cr.P.C. and
consequently, the prayer for quashing the
impugned order dated 24.02.2020 passed by
Additional Sessions Judge, Court No.3,
Saharanpur in S.T. No.605 of 2015, Crime
No.169 of 2014 filed under Sections 147, 148,
149, 302, 120-B I.P.C., Police Station Kotwali,
District Saharanpur is refused.

19. The present 482 Application lacks
merit and is accordingly, dismissed.
----------
(2020)12ILR A200
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.11.2020

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Application U/S 482 No. 13226 of 2020

S.K. Srivastava, IRS(Retd.) ...Applicant
Versus
C.B.I. & Ors. ...Respondents

Counsel for the Applicant:
Sri Shashi Dhar Shukla

Counsel for the Opp. Parties:
A.S.G.I., Sri Ravi Prakash, Sri Sanjay Kumar
Yadav, Sanjeev Kumar Pandey

Criminal Law - Indian Penal Code, 1860-
Section 120B - Section 34- Section 109-
Distinction between- The most important
ingredient
of
the
offence
"criminal
conspiracy" is the agreement between
two or more persons to do an illegal act or
an act not illegal by illegal means -
Section 34 embodies the joint liability in
doing a criminal act, the essence of the act
being the existence of common intention,
participation in the commission of the
offence in furtherance of the common
intention invites its application. On the
other hand Section 109 may be attracted
even if the abettor is not present when
the offence abetted is committed provided
that he has instigated the commission of
the offence or has engaged one or more
persons in a conspiracy to commit an
offence and pursuant to that conspiracy
some act or illegal omission takes place or
has intentionally aided the commission of
an offence by an act or illegal omission.

Where Section 34 talks about joint liability in
doing a criminal act with meeting of minds with
a common intention, Section 109 makes out an
offence of conspiracy where there is abetment ,
intentional aid or instigation to do the offence
and the presence of the abettor is not necessary
at the time of commission of the offence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 482- It is settled
principle of law that at the stage of
framing of charge, in proceedings under
Section 482 Cr.P.C., it is not open for the
Court to enter into the sufficiency of the
evidence in order to appreciate the
documents and the statements in support
of the charge- It is not a case where the
uncontroverted allegations made in the
FIR
or
complaint
and
the
evidence
collected in support of the same do not
disclose the commission of any offence
and make out a case against the accused.
Further, the criminal proceedings is not
manifestly attended with mala fide and/or
the proceedings maliciously instituted
with an ulterior motive against the
applicant merely performing appellate
power in the backdrop of the allegations
and evidences. It is well established
proposition
of
law
that
a
criminal
prosecution, if otherwise justifiable and
based upon adequate evidence does not
suffer on account of mala fide or vendetta
of the complainant. The evidence and the
surrounding circumstances taken on face