# Ram Kishor Singh & Anr v. State of U.P. & Anr

- **Citation:** (2022) 4 ILRA 304
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-24
- **Case number:** Application U/S 482 No. 1273 of 2022
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishor-singh-anr-v-state-of-u-p-anr-48318
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 & 311 -
Indian Penal Code, 1860 - Sections 498A, 304-B - Dowry Prohibition Act, 1961Section 3⁄4-rejection-recall of witnessquestion framed by the applicant in
which the applicant want to crossexamination of the PW-1 was already
done before 20 years ago-the case was
pending for last 20 years-Calling of
witnesses for cross-examination after
long gap is deprecated by Apex CourtTrial
court
rightly
rejected
the
application u/s 311 Cr.P.C. to recall the
witness.(Para 1 to 11)
B. Any court may, at any stage of any
inquiry 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
if it is essential to the just decision of the
case.(Para 6,7)

The application is dismissed. (E-6)

List of Cases cited:

## Text

304 INDIAN LAW REPORTS ALLAHABAD SERIES

Hon'ble Vivek Varma, J.)

1. Since this review application has
been filed beyond time and application
seeking condonation of delay has been
rejected vide order of date, this review
application stands dismissed being barred
by limitation.

2. For order, see our order of the date
passed on Civil Misc. Delay Condonation
Application No. Nil of 2022.
----------
(2022)04ILR A304
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.03.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No. 1273 of 2022

Ram Kishor Singh & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Himanshu Kumar Srivastava

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 & 311 -
Indian Penal Code, 1860 - Sections 498A, 304-B - Dowry Prohibition Act, 1961Section 3⁄4-rejection-recall of witnessquestion framed by the applicant in
which the applicant want to crossexamination of the PW-1 was already
done before 20 years ago-the case was
pending for last 20 years-Calling of
witnesses for cross-examination after
long gap is deprecated by Apex CourtTrial
court
rightly
rejected
the
application u/s 311 Cr.P.C. to recall the
witness.(Para 1 to 11)
B. Any court may, at any stage of any
inquiry 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
if it is essential to the just decision of the
case.(Para 6,7)

The application is dismissed. (E-6)

List of Cases cited:

1. Rajaram Prasad Yadav Vs St. of Bih. & ors.
AIR SC 3081

2. Vinod Kumar Vs St. of Punj. (2015) 3 SCC
220
(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. This application under Section 482
Cr.P.C. has been filed with a prayer to pass
an order or direction thereby quashing the
impugned order dated 22.2.2022 S.T. No.
674 of 2001 (State Vs. Pramod Kumar
Singh and others) initiated on the basis of
case crime no. 64 of 2001 under Sections
498-A, 304-B I.P.C. and 3/4 of the D.P. Act
Police Station- Saraini, District- Raibareli.

2. Learned counsel for the applicants
submitted that marriage of the sister of the
respondent no. 2 namely Smt. Suman Singh
was solemnized on 19.4.2000 and due to an
accident she was died while cooking on
25.5.2001 and due to which respondent no.
2 has lodged an F.I.R. as case crime no. 64
of 2001 under Sections 498-A, 304-B and
3/4 of the D.P. Act. Police Station- Saraini,
District- Raibareli. After recording the
statement of the accused under Section 313
Cr.P.C.
trial
was
fixed
for
defence
evidence. During the pendency of this trial
an application under 311 Cr.P.C. for
summoning and cross examination of P.W.-
1 i.e. respondent no. 2 was moved on
4 All. Ram Kishor Singh & Anr. Vs. State of U.P. & Anr.
305
7.2.2022.
Learned
counsel
for
the
applicants submitted that specific question
was framed under Section 311 Cr.P.C. but
the trial court without giving opportunity
for re-examination of the P.W.-1 wrongly
rejected the application under Section 311
Cr.P.C.

3. The main contention of the learned
counsel for the applicants is that in the
interest of justice an application under
Section 311 should be allowed.

4. Learned A.G.A. submitted that
there is no illegality in the order passed by
the trial court, as every aspects has been
touched in the order of the trial court.

5. Being aggrieved with the order of
the trial court this petition under Section
482 Cr.P.C. has been filed by the
applicants.

6. The provisions of the Section 311
Cr.P.C. is quoted herein 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 relevant paragraph no. 23 of
the Judgment of Hon'ble Apex Court in the
case of Rajaram Prasad Yadav Vs. State of
Bihar and others; AIR SC 3081.

23.
From
a
conspectus
consideration , while dealing with an
application under Section 311 Code of
Criminal Procedure 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
Code of Criminal Procedure 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 Code of Criminal Procedure
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
306 INDIAN LAW REPORTS ALLAHABAD SERIES
further examination in order to arrive at a
just decision of the case.

h) The object of Section 311 Code
of Criminal Procedure simultaneously
imposes a duty on the Court to determine
the truth and to render a just decision.

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 safe
guard, 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
Code
of
Criminal
Procedure
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.

8. I have heard learned counsel for the
parties and perused the order dated
22.2.2022 of the learned trial court. From
the perusal of the order of learned trial
court it indicates that while passing order
on application under Section 311 Cr.P.C. it
is
clearly
mentioned
that
the
chief
examination of the P.W.-1 was conducted
on 16.7.2003 and the accused persons were
cross examined on 16.7.2003, 2.8.2003 and
13.8.2003. Thus, the evidence of P.W.-1
was concluded on 13.8.2003 apart from
P.W.-1, the witness of fact and other
witnesses had already been examined and
other witnesses did not support the version
of the prosecution and they had already
been declared hostile. This application has
been filed after lapse of 20 years. Calling of
witnesses for cross examination after long
gap depricated by the Hon'ble Apex Court
in the case of Vinod Kumar Vs. State of
Punjab (2015) 3 SCC 220.

9. In the application for reexamination of witness P.W.-1 certain
questions framed by the applicant before
the trial court and trial court clearly
discussed each and every point raised by
4 All. Anant Mishra @ Amit Mishra @ Surya Prakash Mishra Vs. State of U.P. & Anr.
307
the applicant. Learned trial court opined
that the question framed by the applicant in
which
the
applicant
want
to
cross
examination of the P.W.-1, which has
already been done. The P.W.-1 was already
cross examined before the trial court before
20 years ago. The case is pending for the
last 20 years and the occurrence is of the
year, 2001. The order dated 22.2.2022
passed by the learned trial court is well
reasoned and well discussed, thus learned
trial
court
has
rightly,
rejected
the
application under Section 311 Cr.P.C. to
recall the witness, P.W.-1 for further cross
examination. Thus, there is no illegality,
irregularity or perversity in the order
passed by the learned trial court.

10. In view of above, the present
application under Section 482 Cr.P.C. is
devoid of merit and is liable to be
dismissed.

11. The application under Section 482
Cr.P.C. is, accordingly, dismissed.

12. Order of the this Court be
communicated to learned trial court for
necessary compliance.
----------
(2022)04ILR A307
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.03.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No. 1325 of 2021

Anant Mishra @ Amit Mishra @ Surya
Prakash Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ravindra Shukla

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Section 364-A/34quashing
of
charge-sheet-Informant
PW-1
lodged
an
FIR
against
the
unknown
persons
that
accused
abducted
his
brother
PW-3-three
witnesses,
PW-1
(informant),
PW-2
(niece
of
abductee)
and
PW3(abductee)
himself
denied
the
prosecution case stating that nobody
abducted him nor any ransom was
demanded-All three accused persons
were exonerated of the charges-Later,
Investigating Officer intentionally filed
charge-sheet ignoring the judgment
passed
by
trial
court-no
criminal
proceeding can be sustained against
co-accused
on
the
same
set
of
witnesses-In the present case too,
there is no separate witness and on the
basis of testimony of same prosecution
witnesses, main accused was acquitted
by the court below-The principle of
stare decisis will apply in the present
case
and
the
criminal
proceeding
cannot
be
sustained-Hence,
quashed.(Para 1 to 14)

B. If two persons are prosecuted,
though separately, under the same
charge
for
offences
having
been
committed in the same transaction and
on the basis of the same evidence, and
if one of them is acquitted for whatever
may be the reason and the other is
convicted,
then
it
will
create
an
anamalous position in law and is likely
to shake the confidence of the people in
the
administration
of
justice.
The
principle of stare decisis will apply and
the applicant's conviction cannot be
sustained.(Para 11)

The application is allowed.(E-6)

List of Cases cited: