# Rajesh @ Rajeshwar & Ors v. State of U.P. & Anr - **Citation:** (2022) 3 ILRA 327 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-02-14 - **Case number:** Application U/S 482 No.26550 of 2021 - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-rajeshwar-ors-v-state-of-u-p-anr-48189 - **Pages:** 5 ## Headnote (A) Criminal Law - Indian Penal Code, 1860 - Sections 302 & 201 - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Section 311 - Power to summon material witness, or examine person present - discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice - cardinal rule of law of evidence - best available evidence must be brought before the court to prove a fact, or a point in issue - object underlying Section 311 Cr.P.C . - there may not be failure of justice on account of mistake of either side in bringing the valuable evidence on record.(Para - 7,9,12) Application under Section 311 Cr.P.C. - to call the witness - statement of witness under Section 161 Cr.P.C. recorded - not examined before court below - last witness of the incident - material witness to reach out the truth - to be examined in the interest of justice - allowed application under Section 311 Cr.P.C. - accused applicant filed an objection before court - ground - belated application filled to delay the trial.(Para - 2,3) HELD:-Order passed in consonance with the provisions of Section 311 Cr.P.C. Summoning the witness by the court below is important whose statement has already been recorded under Section 161 Cr.P.C. which is part of charge sheet . Witness has to be examined, so that court can reach to the truth. No illegality or perversity in the observations and findings recorded by the trial court in the impugned order. (Para - 13,14) Application u/s 482 Cr.P.C. dismissed. (E7) List of Cases cited:- ## Text 3 All. Rajesh @ Rajeshwar & Ors. Vs. State of U.P. & Anr. 327 the observation made above within a period of three months. The applicant will furnish the copy of the order passed by this Court before the court below within two weeks from today. 17. The application is accordingly, allowed. ---------- (2022)03ILR A327 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 14.02.2022 BEFORE THE HON'BLE BRIJ RAJ SINGH, .J. Application U/S 482 No.26550 of 2021 Rajesh @ Rajeshwar & Ors. ...Applicant Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Sri Anuj Bajpai Counsel for the Opposite Parties: A.G.A. (A) Criminal Law - Indian Penal Code, 1860 - Sections 302 & 201 - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Section 311 - Power to summon material witness, or examine person present - discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice - cardinal rule of law of evidence - best available evidence must be brought before the court to prove a fact, or a point in issue - object underlying Section 311 Cr.P.C . - there may not be failure of justice on account of mistake of either side in bringing the valuable evidence on record.(Para - 7,9,12) Application under Section 311 Cr.P.C. - to call the witness - statement of witness under Section 161 Cr.P.C. recorded - not examined before court below - last witness of the incident - material witness to reach out the truth - to be examined in the interest of justice - allowed application under Section 311 Cr.P.C. - accused applicant filed an objection before court - ground - belated application filled to delay the trial.(Para - 2,3) HELD:-Order passed in consonance with the provisions of Section 311 Cr.P.C. Summoning the witness by the court below is important whose statement has already been recorded under Section 161 Cr.P.C. which is part of charge sheet . Witness has to be examined, so that court can reach to the truth. No illegality or perversity in the observations and findings recorded by the trial court in the impugned order. (Para - 13,14) Application u/s 482 Cr.P.C. dismissed. (E7) List of Cases cited:- 1. Natasha Singh Vs C.B.I., 2013(5) SCC 741 2. Mohanlal Shamji Soni Vs U.O.I. & anr., AIR 1991 SC 1346 3. Rajeswar Prasad Misra Vs The St. of W.B. & anr., AIR 1965 SC 1887 4. Rajendra Prasad Vs Narcotic Cell through its Officer-in- Charge, Delhi, AIR 1999 SC 2292 P 5. Sanjeeva Rao Vs St. of A.P., AIR 2012 SC 2242 6. Hoffman Andreas Vs Inspector of Customs, Amritsar, (2000) 10 SCC 430 7. T. Nagappa Vs Y.R. Muralidhar, AIR 2008 SC 2010 (Delivered by Hon'ble Brij Raj Singh, J.) 1. By means of this application under section 482 Cr.P.C., the applicant has invoked the inherent jurisdiction of this 328 INDIAN LAW REPORTS ALLAHABAD SERIES Court for quashing the impugned order dated 28.10.2021 passed by the learned Additional Sessions Judge, Court No.42, Shahjahanpur in Sessions Trial No.395 of 2014 (State Vs. Rajesh) arising out of Case Crime No.189 of 2014, under Sections 302,201 IPC, P.S. Katra, District Shahjahanpur. 2. The prosecution submitted an application under Section 311 Cr.P.C. which has been annexed as Annexure-3 to this application to call the witness, namely, Ratipal with averment that Ratipal had gone to Bareilly Court with his personal assignment where he saw the accused Rajesh @ Rajeshwar at 4 P.M. and further statement was made that deceased Shyam Pal had also gone to District Court Bareily. The statement of Ratipal under Section 161 Cr.P.C. was recorded but he was not examined before the court below though he was last witness of the incident. 3. The Additional Sessions Judge after hearing both the parties passed the judgement on 28.10.2021 in which it was observed that Ratipal is the material witness to reach out the truth and he should be examined in the interest of justice; thus allowed the application under Section 311 Cr.P.C. The accused applicant filed an objection before the court below mentioning that the application under Section 311 Cr.P.C. is belated and it is filed only in order to delay the trial. 4. Learned A.G.A. does not dispute that application under Section 311 Cr.P.C. can be moved at any stage of the trial before the judgment is pronounced. 5. I have considered the submissions advanced by the learned counsel for the applicant and the learned A.G.A. and also perused the record. 6. Section 311 Code Of Criminal Procedure, 1973 is quoted below: "311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case." 7. The aim of every Court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice. 8. The determinative factor is whether it is fundamental for the only choice of the case. The articulation that happens is ?at any phase of any request or trial or other continuing under this Code?. It is, however, to be borne as a primary concern that the optional power presented under Section 311 Cr.P.C. must be practiced sensibly, as it is constantly said ?more extensive the power, more noteworthy is the need of alert while exercise of reasonable caution?. 9. In the matter of Natasha Singh Vs. CBI, reported in 2013(5) SCC 741, the Hon'ble Apex Court after analyzing the law 3 All. Rajesh @ Rajeshwar & Ors. Vs. State of U.P. & Anr. 329 relating to Section 311 of the Cr.P.C. in paragraphs- 10, 11,12,13 & 14 has observed as under: - 10. In Mohanlal Shamji Soni v. Union of India & Anr., AIR 1991 SC 1346, this Court examined the scope of Section 311 Cr.P.C., and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue. However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. The court has a duty to determine the truth, and to render a just decision. The same is also the object of Section 311 Cr.P.C., wherein the court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re- examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. 11. In Rajeswar Prasad Misra v. The State of West Bengal & Anr., AIR 1965 SC 1887, this Court dealt with the ample power and jurisdiction vested in the court, with respect to taking additional evidence, and observed, that it may not be possible for the legislature to foresee all situations and possibilities and therefore, the court must examine the facts and circumstances of each case before it, and if it comes to 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, and if such an action on its part is justified, then the court must exercise such power. The Court further held as under:- ??..the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.? (Emphasis added) 12. In Rajendra Prasad v. Narcotic Cell through its Officer-in- Charge, Delhi, AIR 1999 SC 2292, this Court considered a similar issue and held as under:- ?Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting, errors. 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. 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.? (Emphasis added) 330 INDIAN LAW REPORTS ALLAHABAD SERIES 13. Similarly, in P. Sanjeeva Rao v. State of A.P., AIR 2012 SC 2242, this Court examined the scope of the provisions of Section 311 Cr.P.C. and held as under:- ?Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in this regard apposite: 10. `In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.? xxx xxx xxx xxx 11. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old?.. we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.? 14. In T. Nagappa v. Y.R. Muralidhar, AIR 2008 SC 2010, this Court held, that while considering such an application, the court must not imagine or assume what the deposition of the witness would be, in the event that an application under Section 311 Cr.P.C. is allowed and appreciate in its entirety, the said anticipated evidence. The Court held as under: ?What should be the nature of evidence is not a matter which should be left only to the discretion of the court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub- section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefore, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant.? 12. The The very use of the words in Section 311 Cr.P.C., such as 'any court', 'at any stage' or 'of any inquiry, trial or other proceedings', 'any person' and any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the trial Court in any way. It is well settled that the object underlying Section 311 Cr.P.C .is that there may not be failure of justice on account of mistake of either side in bringing the valuable evidence on record. The determinative factor is whether it is essential to the just decision of the case. In 3 All. Niyaz Ahmad Khan Vs. State of U.P. & Anr. 331 an appropriate case power under Section 311 Cr.P.C. can be invoked by the trial Court in order to meet the end of justice, which depends upon the facts and circumstances of each case. 13. In view of the aforesaid legal discussions and judgment of Hon?ble the Apex Court, I am of the opinion that the order dated 28.10.2021 has been passed by the learned Additional Sessions Judge, Court No.42, Shahjahanpur in consonance with the provisions of Section 311 Cr.P.C. Summoning the witness Ratipal by the court below is important whose statement has already been recorded under Section 161 Cr.P.C. which is part of charge sheet. The witness Ratipal has to be examined, so that the court can reach to the truth. 14. In such circumstances, I do not find any illegality or perversity in the observations and findings recorded by the trial court in the impugned order dated 28.10.2021 passed by the learned Additional Sessions Judge, Court No.42. 15. The instant application lacks merit and is accordingly dismissed. 16. Let a copy of this order be conveyed to the concerned Court below within two weeks for necessary compliance. ---------- (2022)03ILR A331 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 21.02.2022 BEFORE THE HON'BLE SANJAY KUMAR SINGH, J. Application U/S 482 No.28742 of 2021 Niyaz Ahmad Khan ...Applicant Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Sri Jitendra Kumar Srivastava Counsel for the Opposite Parties: G.A. (A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Indian Penal Code, 1860 - Section 500 - Punishment of Defamation , Information Technology (Amendment) Act, 2008 - Section 67 - Punishment for publishing or transmitting obscene material in electronic form - power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner - it has to be used sparingly, only in such appropriate cases, where allegations made in First Information Report or charge-sheet and the materials relied in support of same, on taking their face value and accepting in their entirety do not disclose the commission of any offence against the accused .(Para - 6) (B) Constitution of India - Right to freedom of expression - does not confer upon the citizens the right to speak without responsibility nor does it grant unfettered licence for every possible use of language - High Courts are sentinels of justice with extraordinary and inherent power to ensure that rights and reputation of people are duly protected. (Para - 9) Allegation in FIR - Morphed photo showing Hon'ble Prime Minister - shaking hands with dreaded and wanted terrorist - posted on Facebook - shared by applicant - another post (a morphed photograph) - posted showing Hon'ble Prime Minister and Cabinet Minister - feeding biscuits to dogs, on whom "Aaj Tak TV", "Zee TV" and "India TV" was written - shared by applicant - objectionable photo viral - grounds in application - relate to disputed question of fact - charge sheet and summoning order under challenge .(Para - 6)