# Sanjeev Kumar & Ors v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 903
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-06
- **Case number:** Application U/S 482. No. 1958 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjeev-kumar-ors-v-state-of-u-p-anr-51698
- **Pages:** 5

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 311 - Against
rejection of summoning order - Validity of
- Impugned order records that incident
occurred
on
06.04.2006,
final
report
submitted
on
20.06.2006,
thereafter,
protest petition filed by complainant on
27.07.2007,
allowed,
and
applicants
summoned to face trial - During trial, five
prosecution
witnesses
examined,
but
Investigating
Officer not examined
-
Application u/s 311 Cr.P.C. moved by
applicants seeking his examination as
witness - Rejected - Held, accused moved
application u/s 311 Cr.P.C. at stage of
final
arguments
seeking
to
summon
Investigating Officer, who belongs to
prosecution - Prosecution, however, chose
not to examine him, and accused, having
led defence evidence, also did not opt to
summon
him
as
defence
witness
-
Application, filed belatedly on ground that
officer submitted final report, is untenable
as submission of final report is not in
dispute, and no necessity arises for his
examination to prove this fact - Apart
from bald St.ment that examination of
Investigating Officer would serve interest
of justice, no reasons shown to establish
its necessity for just decision of case -
Application lacks merit, rejected. (Para 3,
4, 17,18)
Application rejected. (E-13)

List of Cases cited:

## Text

3 All. Sanjeev Kumar & Ors. Vs. State of U.P. & Anr.
903
facts and circumstances, as narrated above
and from the perusal of the record, the
impugned charge sheet dated 20.11.2017
alongwith
impugned
cognizance/summoning
order
dated
26.02.2019 passed by learned Additional
Chief Judicial Magistrate-Ist, Faizabad in
Case No.551 of 2019 (State Vs. Mohd.
Rashid Khan), arising out of Case Crime
No.0395 of 2017, under Sections 171 H
and 188 of I.P.C., Police Station Cantt.,
District Faizabad as well as the entire
criminal proceedings in pursuance thereof
are against the spirit and directions issued
by the Hon'ble Apex Court and are liable to
be set aside.

38. Accordingly, the impugned charge
sheet
dated
20.11.2017
alongwith
impugned cognizance/summoning order
dated
26.02.2019
passed
by
learned
Additional Chief Judicial Magistrate-Ist,
Faizabad in Case No.551 of 2019 (State Vs.
Mohd. Rashid Khan), arising out of Case
Crime No.0395 of 2017, under Sections
171 H and 188 of I.P.C., Police Station
Cantt., District Faizabad as well as the
entire criminal proceedings in pursuance
thereof are hereby quashed.

39. For the reasons discussed above,
the instant application under Section 482
Cr.P.C. is allowed in respect of the instant
applicant.

40. Learned Senior Registrar of this
Court is directed to transmit a copy of this
order to the trial court concerned for its
necessary compliance.
----------
(2024) 3 ILRA 903
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.03.2024

BEFORE
THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 1958 of 2024

Sanjeev Kumar & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Aman Kumar Srivastava

Counsel for the Respondents:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 311 - Against
rejection of summoning order - Validity of
- Impugned order records that incident
occurred
on
06.04.2006,
final
report
submitted
on
20.06.2006,
thereafter,
protest petition filed by complainant on
27.07.2007,
allowed,
and
applicants
summoned to face trial - During trial, five
prosecution
witnesses
examined,
but
Investigating
Officer not examined
-
Application u/s 311 Cr.P.C. moved by
applicants seeking his examination as
witness - Rejected - Held, accused moved
application u/s 311 Cr.P.C. at stage of
final
arguments
seeking
to
summon
Investigating Officer, who belongs to
prosecution - Prosecution, however, chose
not to examine him, and accused, having
led defence evidence, also did not opt to
summon
him
as
defence
witness
-
Application, filed belatedly on ground that
officer submitted final report, is untenable
as submission of final report is not in
dispute, and no necessity arises for his
examination to prove this fact - Apart
from bald St.ment that examination of
Investigating Officer would serve interest
of justice, no reasons shown to establish
its necessity for just decision of case -
Application lacks merit, rejected. (Para 3,
4, 17,18)
Application rejected. (E-13)

List of Cases cited:

1. Manu Devi Vs St. of Raj. & Anr: (2019) 6 SCC
203
904 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Harendra Rai Vs St. of Bihar & ors. 2023 SCC
OnLine SC 1023

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

4. Ratanlal Vs Prahlad Jat, (2017) 9 SCC 340,
(Para 17)

5. Manju Devi Vs St. of Raj.: (2019) 6 SCC 203

6. Swapan Kumar Chatterjee Vs CBI, (2019) 14
SCC 328, (Paras 10, 11)

7. V. N. Patil Vs K. Niranjan Kumar, (2021) 3
SCC 661, (Paras 14, 17)

8. Harendra Rai Vs St. of Bihar 2023 SCC OnLine
SC 1023

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard Sri Aman Kumar Shrivastav,
learned
counsel
appearing
for
the
applicants and Sri Akhilesh Kumar Vyas,
learned Additional Government Advocate
and perused the record.

2. By means of the instant application
filed under Section 482 Cr.P.C., the
applicants have challenged the validity of
the order dated 31.01.2024 passed by the
Additional District and Sessions Judge,
outlying Court, Mohammadi, Lakhimpur
Kheri whereby an application filed under
Section 311 Cr.P.C. for summoning the
investigating officer as a witness has been
rejected.

3. It has been stated in the impugned
order dated 31.01.2024 that the incident in
question occurred on 06.04.2006. After
investigation a final report was submitted
on 20.06.2006. Thereafter, the complainant
filed a protest petition on 27.07.2007,
which was allowed and the applicants were
summoned to face trial.

4. During trial, prosecution examined
as
many
as
5
witnesses
but
the
investigating officer Jai Prakash Yadav was
not examined. The application under
Section 311 Cr.P.C. was filed when the
trial had reached at the stage of arguments
and it was stated therein that it would be in
the interest of justice that the investigating
officer to be examined as a witness.

5. Trial court has stated in the
impugned order that prosecution evidence
was closed on 03.03.2023. Statement of the
accused under Section 313 Cr.P.C. was
recorded on 05.04.2023 and thereafter the
matter was fixed for defence evidence.

6. After examination of the defence
witnesses, the matter was fixed for
argument and at this stage, the accused has
filed an application under Section 311
Cr.P.C. for summoning the investigating
officer, who has submitted the final report
as a witness.

7. Trial court held that it is for the
prosecution to decide as to which its
witnesses
the
prosecution
desires
to
produce. The application was filed when
the trial had reached the stage of arguments
in order to cause delay in disposal of the
trial.

8. The learned counsel for the
applicant has submitted that an application
under Section 311 Cr.P.C. can be filed at
any stage of trial, even before delivery of
final judgement. In support of this
submission he has relied upon a judgement
of the Hon'ble Supreme court in the case of
Manu Devi vs State of Rajasthan & Anr:
(2019) 6 SCC 203 wherein the Hon'ble
Supreme
Court
has
held
that
the
discretionary powers like those under
Section 311 CrPC are essentially intended
3 All. Sanjeev Kumar & Ors. Vs. State of U.P. & Anr.
905
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.

9. The learned counsel for the
applicants has also relied on the judgment
of the Supreme Court in the case of
Harendra Rai vs State of Bihar & Ors
2023 SCC OnLine SC 1023 the Hon'ble
Supreme Court has held that Section 311
CrPC confers wide powers on any court at
any stage of any inquiry, trial or other
proceeding under this Code to summon
material
witness
or
examine
person
present. Such person may not be a person
summoned as a witness. Power to recall
and re-examine is also vested. The concept
is that it should be essential for the just
decision of the case.

10. The investigating officer is an
officer
of
the
prosecution
and
the
prosecution chose not to produce him as its
witness. In case the accused persons felt
that evidence of the investigating officer
was essential, the accused could have
summoned him as a defence witness but the
accused did not choose to summon him as a
defence witness. The application for
summoning the investigating officer has
been filed when the trial reached at the
stage of final arguments.

11. In State (NCT of Delhi) vs. Shiv
Kumar Yadav : (2016) 2 SCC 402, it has
been held that: -

"Certainly,
recall
could
be
permitted if essential for the just decision,
but not on such consideration as has been
adopted
in the
present
case.
Mere
observation that recall was necessary "for
ensuring fair trial" is not enough unless
there are tangible reasons to show how the
fair trial suffered without recall. Recall is
not a matter of course and the discretion
given to the court has to be exercised
judiciously to prevent failure of justice and
not arbitrarily. While the party is even
permitted to correct its bona fide error and
may be entitled to further opportunity even
when such opportunity may be sought
without any fault on the part of the opposite
party, plea for recall for advancing justice
has to be bona fide and has to be balanced
carefully
with
the
other
relevant
considerations including un-called for
hardship to the witnesses and un-called for
delay in the trial. Having regard to these
considerations, there is no ground to justify
the recall of witnesses already examined."

12. In Ratanlal vs. Prahlad Jat,
(2017) 9 SCC 340, it was held that: -

"17. In order to enable the court
to find out the truth and render a just
decision, the salutary provisions of Section
311 are enacted whereunder any court by
exercising its discretionary authority at any
stage of inquiry, trial or other proceeding
can summon any person as witness or
examine any person in attendance though
not summoned as a witness or recall or reexamine any person already examined who
are expected to be able to throw light upon
the matter in dispute. The object of the
provision as a whole is to do justice not
only from the point of view of the accused
and the prosecution but also from the point
of view of an orderly society. This power is
to be exercised only for strong and valid
reasons and it should be exercised with
caution and circumspection. Recall is not a
matter of course and the discretion given to
the court has to be exercised judicially to
prevent failure of justice. Therefore, the
906 INDIAN LAW REPORTS ALLAHABAD SERIES
reasons for exercising this power should be
spelt out in the order."

13. In Manju Devi vs. State of
Rajasthan: (2019) 6 SCC 203, the Hon'ble
Court emphasized that a discretionary
power like Section 311 CrPC is to enable
the Court to keep the record straight and to
clear any ambiguity regarding the evidence,
whilst also ensuring no prejudice is caused
to anyone.

14. In Swapan Kumar Chatterjee vs
CBI, (2019) 14 SCC 328, it was held that: -

"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 re-examine 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 re-examine 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 re-examination 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.

15. In V. N. Patil v. K. Niranjan
Kumar, (2021) 3 SCC 661, it was held
that: -

"14.
The
object
underlying
Section 311 CrPC 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 significant expression that
occurs is "at any stage of any inquiry or
trial or other proceeding under this Code".
It is, however, to be borne in mind that the
discretionary
power
conferred
under
Section 311 CrPC has to be exercised
judiciously, as it is always said "wider the
power, greater is the necessity of caution
while exercise of judicious discretion".
xxxx

17. 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."

16. In Harendra Rai vs. State of
Bihar 2023 SCC OnLine SC 1023, a three
Judge Bench of the Hon'ble Court was held
that Section 311, CrPC should be invoked
when it is essential for the just decision of
the case.

17. In the present case, the application
under Section 311 Cr.P.C. was moved by
3 All. Romit Saini Vs. State of U.P. & Anr.
907
the accused persons when trial reached the
stage of hearing final submissions, for
summoning the investigating officer, who
is an officer of the prosecution. The
prosecution could have produced the
investigating officer as its witness, but it
chose not to examine him. The accused
also examined his witnesses but he chose
not to examine the investigating officer as a
defence witness. When the trial reached the
stage of submissions, the application has
been
moved
for
summoning
the
investigating officer as a witness on the
ground that he had submitted a final report.
Submission of the final report is not a
disputed question of fact and there does not
appear to be any necessity for examination
of the investigating officer to prove this
fact.

18. Besides making a bald statement
that it would be in the interest of justice to
examine the investigating officer, nothing
has been stated as to why his examination
is essential for a just decision of the case.

19. From the aforesaid discussion
calling of the investigating officer to be
examined a witness at this stage does not
appear to be essential for a just decision of
a case. The application has been moved
apparently to cause delay in conclusion of
the trial and it has rightly been rejected by
the trial court.

20. As there is no illegality in the
order of the trial court, the application
under Section 482 Cr.P.C. lacks merit and
the same is hereby rejected.
----------
(2024) 3 ILRA 907
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.03.2024

BEFORE
THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 2038 of 2024

Romit Saini ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Bhupendra Nath Tripathi

Counsel for the Respondents:
G.A., Prateek Tewari

Criminal Law - Indian Penal Code, 1860 -
Sections 107 & 306 - Code of Criminal
Code, 1973 - Section 227 - Against
rejection of discharge application - -
Opposite party no.2 lodged FIR alleging
that her husband, Section Officer, was
found hanging from ceiling inside a closed
room - It was St.d that deceased had
informed her of harassment by applicant
and
left
suicide
note
attributing
responsibility for his death to applicant -
Upon investigation, charge sheet filed
against applicant, where after trial court
took cognizance, summoned applicant to
face trial - Applicant contends that
suicide note does not disclose any act of
instigation by applicant and apart from
note, no evidence exists to establish
abetment of suicide - During pendency,
applicant filed discharge application u/s
227 Cr.P.C., rejected - Applicant filed
present application challenging said order
- Held, suicide note records that deceased
paid ₹35 lakhs to applicant, who was
unable to repay amount - It does not
allege deliberate non-payment or any
specific act of applicant, apart from bare
assertion of responsibility for suicide -
There is no allegation of any direct or
indirect act of incitement to commit
suicide - A mere assertion that applicant
responsible due to inability to repay
amount does not constitute abetment of
suicide
-
Impugned
order,
quashed,
applicant stands discharged. (Para 3, 5, 6,
7, 16, 17)

Application allowed. (E-13)