# Rajendra Kumar v. State of U.P. & Anr

- **Citation:** (2022) 11 ILRA 426
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-12
- **Case number:** Application U/S 482 No. 25531 of 2022
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-kumar-v-state-of-u-p-anr-47834
- **Pages:** 9

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 302 - The Code of Criminal
Procedure, 1973 - Section 311 - powers of
court to summon a witness or to recall or
re-examine
any
witness
already
examined, Section 482 - Inherent power ,
An application u/s 311 Cr.P.C. must not be
allowed only to fill up the lacuna in
prosecution case, or of the defense -
11 All. Rajendra Kumar Vs. State of U.P. & Anr.
427
Unfair advantage should not be given to
any of the parties and the additional
evidence must not be received as a
disguise for re-trial - powers of judicial
supretendence under Section 482 Cr.P.C.
has to be exercised sparingly when there
is apparent error or gross injustice in view
taken by the subordinate courts.(Para -
15,17, 18)

Application u/s 311 Cr.P.C. - moved by new
counsel - recalling PW1 - further crossexamination - nothing mentioned in application -
what questions applicant proposes to ask from
PW1
-
if
opportunity
of
further
crossexamination granted - trial court rejected
application - Aggrieved - hence application u/s
482 of Cr.P.C.(Para -5,17 )

HELD:-Mere change of advocate cannot be a
ground to recall the witnesses . Fair opportunity
granted to the accused and opportunity cannot
be given to meet out the loop-holes in evidence
by way of Section 311 Cr.P.C., which may cause
prejudice to either of the parties. No error in the
impugned order.(Para - 18,19)

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

List of Cases cited:-

## Text

426 INDIAN LAW REPORTS ALLAHABAD SERIES
समान्यीकरर् करिा, क्षगरोह बन्द अक्षधक्षियम के
उद्देश्य के प्रक्षतकूल होगा। "लोक व्यवस्था को अस्तव्यस्त" करिा अपराध काररत होिे के पिात उस
स्थाि या आस पास के वास्तक्षवक माहौल पर
आधाररत होगा, जो क्षकसी मामले के तथ् व
पररन्धस्थक्षतयोिं के मद्देिज़र होगा ि ही एक घटिा को
एक ही दृक्षष्ट से देखा जा सकता। शब्द 'दुक्षियावी',
'आक्षथणक', 'भौक्षतक' व 'अन्य लाभ' का क्षवस्तृत अथण है,
जो केवल एक मामले के तथ्ोिं को ध्याि मे रखकर,
सिंकुक्षचत िहीिं क्षकया जा सकता है वो भी तब, जब
क्षवचारर् िहीिं हुआ हो और अन्तक्षिणक्षहत शन्धक्त के
उपयोग सिंदक्षभणत ि हो। ऐसा तात्पयण होिा ि केवल
अिुक्षचत है, बन्धल्क क्षगरोहबन्द अक्षधक्षियम के उद्देश्योिं
के प्रक्षतकूल भी है। अतः तेज शसंह (पूवव े
उल्लिल्लखत) का कोई लाभ आवेदकगर् को िहीिं
क्षमल सकता है। आवेदकगर् के अक्षधवक्ता का
क्षिवेदि क्षक पीक्षडता िे पूवाणग्रह से ग्रक्षसत होकर उिके
क्षवरूद्ध दो आपराक्षधक मामले दजण कराये हैं क्योिंक्षक
उसके पक्षत के क्षवरूद्ध आवेदकगर् िे एक अपराध में
मामला दजण कराया था, क्षजसमे उसे सजा भी दी गई
है, इस स्तर पर क्षवचारर्ीय िहीिं है, क्योक्षक यह एक
बचाव है अतः क्षवचारर् का क्षवषय है।

31. वतणमाि प्रकरर् में यह सवणक्षवक्षदत है, क्षक
आवेदकगर् के क्षवरूद्ध दो आपराक्षधक मामले दजण
हैं, क्षजिमें अन्वेषर् के उपरान्त आरोप पि, गिंभीर
अपराध काररत होिे के साक्ष्य उपलब्ध होिे के कारर्
प्रेक्षषत क्षकये जा चुके हैं, क्षजिका सिंज्ञाि भी क्षलया जा
चुका है। तथ्ोिं के अिुसार आवेदकगर् िे ि केवल
पीक्षडत का सामूक्षहक बलात्कार क्षकया बन्धल्क उसके
द्वारा प्रथम सूचिा ररपोटण दजण करािे पर उसको
धमकाया व उसकी लज्जा भिंग भी करी तथा जाूँच
अक्षधकारी िे घटिा स्थल के आस-पास के माहौल का
अध्ययि कर साक्ष्य लेखबद्ध क्षकया है, क्षक िेि में
आतिंक, भय व रोष व्याप्त है तथा उिके क्षवरूद्ध
प्राथक्षमकी दजण करािे का साहस कोई िहीिं कर पाता
है। इस आकलि को इस स्तर पर क्षिराधार िही मािा
जा सकता है, वो भी तब, जब आवेदकगर्ो पर दो
आपराक्षधक मुकदमे दजण हो रखे हैं, जो धारा 3(1) के
अधीि दण्डिीय है। आवेदकगर् िे बलात्कार व
छेड़छाड़ जैसे कृत्य करके, लोक व्यवस्था को अस्तव्यस्त करिे व अपिे क्षगरोह के क्षलए अिुक्षचत
दुक्षियावी व भौक्षतक लाभ प्राप्त करिे के उद्देश्य से
समाज क्षवरोधी क्षक्रयाकलाप क्षकये हैं, जो भारतीय
दण्ड सिंक्षहता के अध्याय-16 के अधीि दण्डिीय है
तथा इस कृत्य/क्षक्रया कलाप के कारर् जिता में भय,
दहशत या सिंिास भी फैला, जो धारा 2(ख)(ग्यारह)
सपक्षठत धारा 3(1) के अधीि दण्डिीय भी है, इि
पररन्धस्थक्षतयोिं में अन्तक्षिणक्षहत शन्धक्तयोिं का उपयोग
करिा आपराक्षधक कायणवाही को अचािक मृत्यु
पहुचािे जैसा होगा जो साधारर्तया िहीिं क्षकया जा
सकता है।

(ज) शनष्कषव

32. अतः ऐसी कोई पररन्धस्थक्षत िही है क्षक
अन्तक्षिणक्षहत शन्धक्त का प्रयोग क्षकया जाये। आवेदि
गुर् दोष पर योग्य ि होिे के कारर् क्षिरस्त क्षकया
जाता है।
----------
(2022) 11 ILRA 426
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

THE HON'BLE AJAI TYAGI, J.

Application U/S 482 No. 25531 of 2022

Rajendra Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Applicant:
Ms. Samriddhi Upadhyaya, Sri Yash Dev
Upadhyaya, Sri Sant Saran

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Section 302 - The Code of Criminal
Procedure, 1973 - Section 311 - powers of
court to summon a witness or to recall or
re-examine
any
witness
already
examined, Section 482 - Inherent power ,
An application u/s 311 Cr.P.C. must not be
allowed only to fill up the lacuna in
prosecution case, or of the defense -
11 All. Rajendra Kumar Vs. State of U.P. & Anr.
427
Unfair advantage should not be given to
any of the parties and the additional
evidence must not be received as a
disguise for re-trial - powers of judicial
supretendence under Section 482 Cr.P.C.
has to be exercised sparingly when there
is apparent error or gross injustice in view
taken by the subordinate courts.(Para -
15,17, 18)

Application u/s 311 Cr.P.C. - moved by new
counsel - recalling PW1 - further crossexamination - nothing mentioned in application -
what questions applicant proposes to ask from
PW1
-
if
opportunity
of
further
crossexamination granted - trial court rejected
application - Aggrieved - hence application u/s
482 of Cr.P.C.(Para -5,17 )

HELD:-Mere change of advocate cannot be a
ground to recall the witnesses . Fair opportunity
granted to the accused and opportunity cannot
be given to meet out the loop-holes in evidence
by way of Section 311 Cr.P.C., which may cause
prejudice to either of the parties. No error in the
impugned order.(Para - 18,19)

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

List of Cases cited:-

1. Varsha Garg Vs St. of M.P. & ors. , In SLP
(Crl) No.2239 of 2022 (Criminal Appeal N0.1021
of 2022 )

2. Mohanlal Shamji Soni Vs U.O.I. , (1991) Supp
(1) SCC 271

3. Rajaram Prasad Yadav Vs St. of Bihar & ors. ,
2013 14 SCC 461

4. AG Vs Shiv Kumar Yadav, 2015 0 Supreme
(SC) 875

5. Rajendra Trehan Vs M/S HDFC Bank Ltd.
,2022 LawSuit (P&H) 1635

6. Zahira Habibulla H. Sheikh Vs St. of Guj.
(2006) 3 SCC 374

7. Godrej Pacific Tech. Ltd. Vs Computer Joint
India Ltd. ,(2008) 11 SCC 108
8. Manju Devi Vs St. of Rajasthan, (2019) 6 SCC
203

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This application u/s 482 Cr.P.C. is
moved by applicant Rajendra Kumar
against the State of U.P. being aggrieved
with the order passed by Additional District
and Sessions Judge, Court No.1, Ghaziabad
on 02.08.2022 in S.T. No.1512 of 2005
(State vs. Manmohan and others), under
Section 302 IPC, Police Station- Kotwali,
District-
Ghaziabad,
whereby
the
application, moved by applicant-accused
Rajendra Kumar, under Section 311 of
Cr.P.C. for recalling PW1 Shiv Kumar
Sharma was rejected by aforesaid trial
court.

2. Heard Shri Sant Saran, Advocate
appearing on behalf of Ms. Samriddhi
Upadhyaya, assisted by Shri Yash Dev
Upadhyaya,
learned
counsel
for
the
applicant and Shri Mithilesh Kumar,
Learned AGA for the State.

3. Brief facts of the case giving rise to
this present application are that a first
information report was lodged by Shiv
Kumar Sharma against Manmohan @
Bittu, Rajendra @ Pappu and Satpal @
Santo u/s 302 r/w Section 34 IPC on
05.05.2005, in which averment was made
that complainant Shiv Kumar had lent his
shop to Ranjeet. Manmohan, brother of
Surendra Bhola, had told him to get the
shop vacated. Due to this cause persons
became inimical and told him that he was
with their enemies. On 5.5.2005, all the
three accused with one more person came
to his house to see his ailing father and
after that at about 8:15 pm when they were
returning, he and his brother Ashok @
Billu and Arjun Sharma went to see off
428 INDIAN LAW REPORTS ALLAHABAD SERIES
them. When they reached on the road, all
the three named accused with one more
person dragged their country made pistols
and fired at them with intention to kill. In
this occurrence, the brother of complainant
Ashok @ Billu sustained serious injuries
and was declared dead in hospital. The
scribe of the aforesaid FIR was Arjun
Sharma.

4. Investigation was carried out and
charge sheet was submitted by I.O. against
the accused persons. Learned trial court
framed charge under Section 302 r/w
Section 34 IPC against all the accused
persons. During trial, complainant Shiv
Kumar Sharma was examined as PW1 and
scribe of FIR Arjun Sharma was examined
as PW2. Prosecution examined only two
witnesses, namely, PW1 and PW2 as
witnesses of fact and six other formal
witnesses were examined. After completion
of prosecution evidence, statements of
accused persons were recorded under
Section 313 Cr.P.C. Accused persons were
given opportunity for their defence.

5. After that an application u/s 311
Cr.P.C. was moved on behalf of the
accused Rajendra Kumar for recalling PW1
Shiv Kumar Sharma for further crossexamination. The aforesaid application
under Section 311 Cr.P.C. was rejected by
learned trial court vide impugned order
dated 2.8.2022. Aggrieved with impugned
order, applicant-accused Rajendra Kumar
moved this application u/s 482 of Cr.P.C.

6. Learned counsel for the applicant
submitted that learned trial court has
rejected the application without application
of judicial mind only on two grounds,
firstly, that cross-examination of PW1 has
already been done on behalf of the accused
persons and secondly, that the sessions trial
is very old and pending since the year 2005
and one of the oldest matter of the court.
Learned counsel for the applicant submitted
that application should not have been
rejected on the ground that the case is very
old because on this ground justice should
not be buried. Learned counsel for the
applicant relied on the decision of Apex
Court in Criminal Appeal N0.1021 of 2022
Varsha Garg Vs. State of Madhya
Pradesh and others In SLP (Crl)
No.2239 of 2022. Learned counsel for the
applicant further submitted that in the
aforesaid Sessions trial complainant Shiv
Kumar Sharma has been examined as PW1
and scribe of FIR Arjun Sharma as PW2. In
his
examination-in-chief
PW2
Arjun
Sharma supported the prosecution case but
in his cross-examination he has totally
retracted
from
his
statement
in
examination-in-chief and has denied of
being eye-witness in cross-examination by
saying that he had not seen the occurrence
and he had heard only the sound of firing.
He has specifically deposed that he knows
the accused persons by name but had not
seen anyone firing due to darkness.
Learned counsel for the applicant argued
that in this way PW2 has not supported the
prosecution case in cross-examination but
the prosecution did not make any prayer to
get him declared hostile. Hence, it is
necessary to further cross-examine PW1
with regard to the evidence of his presence
on the spot because it is deposed that he
had written the report on dictation of PW1
Shiv Kumar Sharma and he had written in
the report whatever was dictated to him by
PW1. Hence, further cross-examination of
PW1 is essential on this point.

7. Learned counsel for the applicant
next submitted that PW1 Shiv Kumar
Sharma has himself made self contradictory
statements in his deposition. PW1 has said
11 All. Rajendra Kumar Vs. State of U.P. & Anr.
429
in examination-in-chief that he and Arjun
Sharma saved their lives by hiding behind
the wall but in cross-examination he had
deposed that they saved their lives by
hiding behind wooden Takht. Hence,
clarification of contradictions is necessary
and for that purpose it is essential to recall
PW1 for further cross-examination.

8. Learned counsel for the applicant
submitted that these aforesaid questions
and circumstances could not be asked from
PW1 in cross-examination because the
defence counsel was of old age and due to
his advance age he could not cross-examine
PW1
with
regard
to
the
aforesaid
contradictions in the evidence of PW1 and
PW2 and that later on the learned counsel
is stopped coming to the court and accused
persons changed their counsel and the new
advocate
moved
application
u/s
311
Cr.P.C. in the lower court after examining
the file but the application was rejected by
trial only on the ground that sessions trial is
very old one and PW1 has already been
cross-examined at length.

9. It is also submitted by learned
counsel for the applicant that FIR is also
ante time but questions in this regard was
not asked from PW1 in cross-examination.

10. Learned counsel for the applicant
said that at the time of disposal of
application u/s 311 Cr.P.C., the trial court
should have considered the essentiality of
evidence for just decision of the case. It is
also submitted that in the land mark
judgement Mohanlal Shamji Soni Vs.
Union of India (1991) Supp (1) SCC 271
guidelines were mentioned by Hon'ble
Apex Court with regard to the exercise of
power under Section 311 Cr.P.C. and
emphasis was laid down that essentiality of
evidence of the person who is to be
examined coupled with the need for the just
decision
of
the
case
constitute
the
touchstone which must guide the decision
of the court. Broad power u/s 311 Cr.P.C.
are to be governed by the requirement of
the justice but the learned trial court did not
consider the concept of essentiality of
evidence to arrive at the just decision of the
case. Hence, the impugned order to set
aside and trial court to be directed to recall
PW1 for further cross-examination.

11. Learned AGA objected to the
submissions made by learned counsel for
the applicant and at the outset submitted
that the application u/s 311 Cr.P.C., which
was moved by applicant in the lower court,
does not contain questions which are
proposed to be asked from PW1. Learned
AGA submitted that in the application u/s
311 Cr.P.C., the applicant has to disclose as
to what questions he proposes to ask from
the witness but no such question is
mentioned in the application moved by
accused-applicant in this case, which
means that if application is allowed then it
will be open to the applicant to crossexamine the witness on any ground which
is not the intention of provision of Section
311 Cr.P.C. and it is not permitted.
Moreover,
it
is
not
mentioned
in
application as to what new evidence has
taken place after completion of evidence of
PW1. Learned AGA made submissions that
there are two parts in Section 311 of
Cr.P.C. In first part "may" word is given
which means that it is the discretion of the
court that it may or may not allow the
application and in second part "shall" word
is given, which means that it shall be
obligatory on the court to recall the witness
if evidence appears to be essential to the
just decision of the case. But in this case
nothing is shown by the applicant in the
application regarding the essentiality of
430 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence. Learned AGA also submitted that
the judgement of the Apex Court in
Rajaram Prasad Yadav Vs. State of
Bihar and others reported in 2013 14 SCC
461 has narrated several guidelines for
deciding the application u/s 311 Cr.P.C.
and one of the guidelines is that the
exercise of the said power cannot be
dubbed as filling up in a lacuna in a
prosecution case unless the fact and
circumstances make it apparent that the
exercise of the power by the court would
result in causing serious prejudice to the
accused, resulting in miscarriage of justice.

12. Learned AGA made further
submission that change of the advocate is
no ground for recalling any witness.
Learned AGA relied on AG Vs. Shiv
Kumar Yadav 2015 0 Supreme (SC) 875
and submitted that it is clearly held by
Hon'ble Apex Court in the aforesaid
judgement that mere change of the counsel
cannot be ground to recall the witnesses. It
is also submitted that even competency of
the counsel was a subjective matter and this
plea cannot easily be accepted. Learned
AGA
submitted
that
the
aforesaid
judgement of the Apex Court is followed
recently by the High Court of Punjab and
Haryana in Rajendra Trehan Vs. M/S
HDFC Bank Ltd. 2022 LawSuit (P&H)
1635 and held that change of counsel is no
ground for recalling of witnesses. In fact,
the application u/s 311 Cr.P.C. is moved by
accused-applicant to linger on the decision
of the case.

13. Learned counsel for the applicant,
in reply, submitted that primary factor for
deciding the application u/s 311 Cr.P.C. is
essentiality of evidence to arrive at to the
just decision of the case and filling up the
loop-holes and lacuna is merely subsidiary
factor as held by Hon'ble Apex Court in
Zahira Habibulla H. Sheikh Vs. State of
Gujarat (2006) 3 SCC 374 and Godrej
Pacific Tech. Ltd. Vs. Computer Joint
India Ltd. (2008) 11 SCC 108.

14. I have carefully considered the
rival submissions made by the parties as
well as gone through the record.

15. The nature and scope of the
powers to be exercised by the court under
Section 311 Cr.P.C. was elaborately
considered in the case of Rajaram Prasad
Yadav v State of Bihar and another
(supra) and after considering the earlier
precedents, the principles to be followed by
the courts with regard to exercise of powers
under the said section have been explained
and enumerated. It has been stated thus:-

"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 reexamine any witness already examined. A
reading of the provision shows that the
expression "any" has been used as a prefix
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 prefix 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. The order of reexamination is also prescribed calling for
such a witness so desired for such re-
11 All. Rajendra Kumar Vs. State of U.P. & Anr.
431
examination. Therefore, a reading of
Section 311 CrPC 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.

xxx

23.
From
a
conspectus
consideration of the above decisions, while
dealing with an application under Section
311 Cr P C read along with Section 138 of
the Evidence Act, we feel the following
principles will have to be borne in mind by
the courts:

a) Whether the court is right in
thinking that the new evidence is needed by
it? Whether the evidence sought to be led in
under Section 311 is noted by the court for
a just decision of a case?

b) The exercise of the widest
discretionary power under Section 311
CrPC should ensure that the judgment
should not be rendered on inchoate,
inconclusive speculative presentation of
facts, as thereby the ends of justice would
be defeated.

c) If evidence of any witness
appears to the court to be essential to the just
decision of the case, it is the power of the
court to summon and examine or recall and
re-examine any such person.

d) The exercise of power under
Section 311 Cr P C should be resorted to
only with the object of finding out the truth or
obtaining proper proof for such facts, which
will lead to a just and correct decision of the
case.

e) The exercise of the said power
cannot be dubbed as filling in a lacuna in a
prosecution case, unless the facts and
circumstances of the case make it apparent
that the exercise of power by the court would
result in causing serious prejudice to the
accused, resulting in miscarriage of justice.

f) The wide discretionary power
should be exercised judiciously and not
arbitrarily.

g) The court must satisfy itself that
it was in every respect essential to examine
such a witness or to recall him for further
examination in order to arrive at a just
decision of the case.

h) The object of Section 311 Cr P
C simultaneously imposes a duty on the court
to determine the truth and to render a just
decision.
432 INDIAN LAW REPORTS ALLAHABAD SERIES

i) The court arrives at the
conclusion that additional evidence is
necessary, not because it would be
impossible to pronounce the judgment
without it, but because there would be a
failure of justice without such evidence
being considered.

j) Exigency of the situation, fair
play and good sense should be the
safeguard, while exercising the discretion.
The court should bear in mind that no party
in a 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.

k) The court should be conscious
of the position that after all the trial is
basically for the prisoners and the court
should afford an opportunity to them in the
fairest manner possible. In that parity of
reasoning, it would be safe to err in favour
of the accused getting an opportunity
rather than protecting the prosecution
against possible prejudice at the cost of the
accused. The court should bear in mind
that improper or capricious exercise of
such a discretionary power, may lead to
undesirable results.

l) The additional evidence must
not be received as a disguise or to change
the nature of the case against any of the
party.

m) The power must be exercised
keeping in mind that the evidence that is
likely to be tendered, would be germane to
the issue involved and also ensure that an
opportunity of rebuttal is given to the other
party.

n) The power 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 care, caution
and circumspection. The court should bear
in mind that fair trial entails the interest of
the accused, the victim and the society and,
therefore, the grant of fair and proper
opportunities to the persons concerned,
must be ensured being a constitutional
goal, as well as a human right."

16. There is no doubt in the legal
position that Court has to bear in mind the
essentiality of evidence for just decision of
the case while deciding the application u/s
311 Cr.P.C. as held by Hon'ble Apex Court
in catena of judgements and also the
duration of a case cannot displace the
specific requirement of just decision after
taking all the necessary and material
evidence on record as held by Hon'ble
Apex Court in Manju Devi Vs. State of
Rajasthan (2019) 6 SCC 203.

17. As far as the test of essentiality
of evidence is concerned, it should also
be kept in mind that no prejudice is to be
caused to any of the parties. I am in full
agreement with the contention of learned
AGA that nothing is mentioned in
application u/s 311 Cr.P.C. annexed as
Annexure No.6 to the affidavit as to what
questions applicant proposes to ask from
PW1 if opportunity of further crossexamination is granted rather it is
mentioned in the aforesaid application
that facts and circumstances are not be
enumerated because the defense of the
accused will be disclosed. It means that if
opportunity is given for further crossexamination and it will be open to the
applicant-accused to cross-examine the
witness on any point, which may take the
shape of re-trial. Moreover, in this
particular case since nothing is mentioned
in application u/s 311 Cr.P.C. as to on
what points questions are to be asked,
during the course of the argument before
11 All. Rajendra Kumar Vs. State of U.P. & Anr.
433
this Court, learned counsel for the
applicant has brought forward several
contradictions in the evidence of PW1
and PW2. It is also submitted by the
learned counsel for the applicant that
PW2, scribe of the FIR, did not support
prosecution in his cross-examination and
prosecution did not request to the court
for declaring him hostile. It is no concern
of the accused whether prosecution is
getting declared any witness hostile or
not. It is the consideration of prosecution
only. Learned counsel for the applicant
has
submitted
that
several
selfcontradictory statements have emerged in
the evidence of PW1 on which questions
are to be asked in further crossexamination. It is also submitted that
questions are also to be asked with regard
to the presence of PW2 at the scene of the
occurrence when PW2 has denied the
prosecution
case
in
his
crossexamination. In my opinion, all these
aforesaid proposed questions or points
are argumentative questions and points,
which come in the category of loopholes. Hence, the aid of Section 311 of
Cr.P.C. cannot be given to the accused to
fill up the loop-holes. The proposed
points or questions, as told to this Court
during the course of argument, do not
come in the purview of essentiality of
evidence. An application u/s 311 Cr.P.C.
must not be allowed only to fill up the
lacuna in prosecution case, or of the
defense. Unfair advantage should not be
given to any of the parties and the
additional evidence must not be received
as a disguise for re-trial as it would be if
the application u/s 311 Cr.P.C. in this
case is allowed. The Court has to bear in
mind that opportunity of fair trial should
be given to the accused, but it should also
be kept in mind that the interest of victim
also should not be prejudiced.

18. Learned counsel for the applicant
has vehemently submitted and emphasized
that all the questions and circumstances
could not be put to PW1 in crossexamination because of the advance age of
the counsel of the applicant-accused and
application u/s 311 Cr.P.C. was moved by
the new counsel. In this way, the
competency of earlier counsel is also
questioned by new counsel. The accusedapplicant had appointed the advocate of his
choice, who was given due and fair
opportunity
and
thorough
crossexamination of PW1 was conducted by him
on various dates, way back in the year 2006
and 2007. No finding could be recorded
that earlier advocate appointed by the
accused-applicant was incompetent. Hence,
in these circumstances mere change of
advocate cannot be a ground to recall the
witnesses. Needless to say that the powers
of judicial supretendence under Article 227
of the Constitution of India and under
Section 482 Cr.P.C. has to be exercised
sparingly when there is apparent error or
gross injustice in view taken by the
subordinate courts. In the present case fair
opportunity was granted to the accused and
opportunity cannot be given to meet out the
loop-holes in evidence by way of Section
311 Cr.P.C., which may cause prejudice to
either of the parties.

19. In view of above discussion, this
Court does not find any error in the
impugned order and is not inclined to
interefere with.

20. Accordingly, the application u/s
482 Cr.P.C. is dismissed.

21. It is made clear that observations
made in this order shall be confined to the
disposal of the aforesaid application u/s
482 Cr.P.C. only.
434 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 11 ILRA 434
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Civil Revision No. 303 of 2013

Pramod Khandelwal ...Revisionist
Versus
Vinod Khandelwal & Ors.
 ... Opposite Parties

Counsel for the Revisionist:
Sri A.K. Goyal

Counsel for the Opposite Parties:
Sri Siddhartha Srivastava

(A)
Civil
Law
-

Code
of
Civil
Procedure,1908 - Order 7 Rule 11 -
Rejection of Plaint - The Securitisation
and Reconstruction of Financial Assets
and Enforcement of Security Interest
Act, 2002 - Sections 13 (2) & 34 - plea
regarding
jurisdiction
should
be
decided as preliminary issue - issue of
law can be decided as a preliminary
issue only where it is such that a
decision
does
not
necessitate
investigation into facts - it relates
either to jurisdiction of the Court or to
the
suit
being
barred
under
any
prevailing law. (Para -21,22)

(B)
Civil
Law
-
Code
of
Civil
Procedure,1908 - Order 14 Rule 2 -
when the question of jurisdiction is
exclusively involved which does not
require any investigation of fact and
the same can be decided on the basis
of pleadings without any evidence -
trial Court can decide the said issue as
preliminary issue - Jurisdiction vested
under
Order
14
Rule
2
C.P.C.
is
discretionary and not mandatory. (Para
- 17,19)
Sale deed executed by defendant/respondent
no.1 in favour of defendant/respondent no.3 -
Suit instituted by plaintiff/respondent no.1 -
cancellation of sale deed - ground - exclusive
owner of property in question - application filed
under
Order
7
Rule
11
C.P.C.
by
revisionist/defendant no.1- contention - sale
deed has been executed under Section 13(2) of
SECURITISATION
ACT,
2002
-
case
for
cancellation of sale deed - pending before the
Debt Recovery Tribunal - suit before trial Court
not maintainable and is barred - trial court
refused to reject plaint under Order 7 Rule 11
C.P.C. - question of jurisdiction is mixed
question of fact and law - power under Order 7
Rule 11 not exercisable.(Para - 2,3,4,13,14)

HELD:-Issue involved is a mixed question of
fact and law which requires appreciation of
evidence in support of the pleadings on record.
Trial Court not committed any jurisdictional
error in dismissing the said application. (Para -
18 )

Revision dismissed. (E-7)

List of Cases cited:-

1. Manager, Bettiah Estate Vs Bhagwati Saran
Singh & ors., 1992 (2) AWC 1233

2. Mrs. Shahnaz Husain & ors. Vs Mohd. Yunus
& ors., 1993 (1) ACJ 216

3. Smt. Subhash Bhalla & anr. Vs Smt. Jai Devi
& anr., 2008 All. C.J.7732010 (78) ALR 755

4. Dhampur Sugar Mills Ltd. & anr. Vs Rajeev
Sinha

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri A.K. Goyal, learned
counsel for the revisionist/ defendant and
Sri Siddharth Srivastava, learned counsel
for plaintiff/respondent no.1.

2. The plaintiff/respondent no.1
instituted a suit for cancellation of sale
deed
dated
30.03.2009
executed
by
defendant/respondent no.1 in favour of