# Sirajuddin v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 969
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-27
- **Case number:** J. Application U/S 482. No. 5372 of 2005
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sirajuddin-v-state-of-u-p-anr-50958
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 311, 313 & 482
- Indian Penal Code, 1860 - Sections 363,
366, 366-A, 376 & 506 - Indian Evidence
Act, 1872 - Sections 80, 145 & 157 -
Application U/s 482 Cr.P.C. - for quashing of
trial court's order allowing prosecution's request
under Section 311 CrPC to recall and re-examine
victim (PW-3) - FIR - charge-sheet - offence
under Sections 363, 366, and 376 IPC -
Prosecution argued victim was frightened during
initial deposition and her Section 164 CrPC
St.ment remained unproved - Defence opposed
recall, alleging attempt to plug evidentiary gaps
and citing admissibility under Section 80 of
Evidence Act - Trial court permitted reexamination
despite
objections
-
instant
application, alleging judicial impropriety and
procedural unfairness - Court observed that,
PW-3 had already been declared hostile, crossexamined, denied allegations of rape and
abduction, disowned St.ments under Sections
161 and 164 CrPC, and affirmed her court
testimony as truthful - and the St. of UP or the
opposite party no. 2 had not questioned the
proceedings of the trial court - Held - recalling
PW-3 would prejudice the accused and serve no
legal purpose - and the testimony on oath in
the court during the course of trial has
overriding effect - therefore, to prevent abuse
of process and secure justice, application is
allowed - and the impugned order is hereby
quashed.
(Para -14, 17, 18, 19, 20, 22)
 Application Allowed. (E-11)

List of referred Cases: -

## Text

3 All. Sirajuddin Vs. State of U.P. & Anr.
969
quash the impugned charge-sheet and the
proceedings of the criminal case pending
against the applicant. The grounds taken by
the applicant are imaginary and trivial in
nature and are not sustainable in the eyes of
law. Therefore, the petition lacks merit and
is liable to be dismissed.

24. Accordingly, this petition under
Section 482 CrPC is dismissed. Interim
order, if any, stands vacated.

25. Let a copy of this order be sent to
the
CJM,
Ghaziabad
for
necessary
compliance and for committal of the case if
the same has not been committed to the
Court of Sessions. In case the trial is not
conducted, the same shall be conducted and
concluded as early as possible preferably
within a period of one year from the date
of receipt of a copy of this order by the
court concerned as the matter has become
very old.
----------
(2024) 3 ILRA 969
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Application U/S 482. No. 5372 of 2005

Sirajuddin ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vinod Prasad, Sri Dhirendra Kumar
Srivastava, Sri Dinesh Kumar Singh, Sri
Mohd. N. Siddiqui, Sri Pushkar Srivastava,
Sri Vinod Sharma

Counsel for the Opposite Parties:
G.A., Sri R.P. Srivastava
Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 311, 313 & 482
- Indian Penal Code, 1860 - Sections 363,
366, 366-A, 376 & 506 - Indian Evidence
Act, 1872 - Sections 80, 145 & 157 -
Application U/s 482 Cr.P.C. - for quashing of
trial court's order allowing prosecution's request
under Section 311 CrPC to recall and re-examine
victim (PW-3) - FIR - charge-sheet - offence
under Sections 363, 366, and 376 IPC -
Prosecution argued victim was frightened during
initial deposition and her Section 164 CrPC
St.ment remained unproved - Defence opposed
recall, alleging attempt to plug evidentiary gaps
and citing admissibility under Section 80 of
Evidence Act - Trial court permitted reexamination
despite
objections
-
instant
application, alleging judicial impropriety and
procedural unfairness - Court observed that,
PW-3 had already been declared hostile, crossexamined, denied allegations of rape and
abduction, disowned St.ments under Sections
161 and 164 CrPC, and affirmed her court
testimony as truthful - and the St. of UP or the
opposite party no. 2 had not questioned the
proceedings of the trial court - Held - recalling
PW-3 would prejudice the accused and serve no
legal purpose - and the testimony on oath in
the court during the course of trial has
overriding effect - therefore, to prevent abuse
of process and secure justice, application is
allowed - and the impugned order is hereby
quashed.
(Para -14, 17, 18, 19, 20, 22)
 Application Allowed. (E-11)

List of referred Cases: -

1. Raja Ram Prasad Yadav Vs St. of Bihar &
anr., AIR 2013 SC 3081,

2. VN Patil Vs Niranjan Kumar & ors., (2021) 3
SCC 661,

3. Utpal Das Vs St. of W.B., AIR 2010 SC 1894,

4. Baijnath Singh Vs St. of Bihar, 2010 (70) ACC
11 (SC),

5. Asian Resurfacing of Road Agency Pvt. Ltd.
Vs Central Bureau of Investigation, (2018) 16
SCC 299.
970 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Dhirendra Kumar
Srivastava,
learned
counsel
for
the
applicant, learned AGA for the State and
perused the record.

2. This application has been moved
by the applicant to quash the order dated
03.05.2005 passed by Additional District
and Sessions Judge, Court No.12, Varanasi
in ST No.535 of 2002 (State Vs. Bafati),
under Sections 363, 366, 376 IPC, Police
Station Lohta, District Varanasi, whereby
the
learned
trial
court
allowed
the
application 77kha and summoned the
victim PW-3 for re-examination under
Section 311 CrPC.

3. In brief, facts of the case are that
informant
Munir
moved
a
written
complaint
on
24.04.2001
that
on
20.04.2001 when his wife Jamila had gone
to Dargah Sharif, Akbarpur and he had
gone to Lallapura to meet his friend, his
neighbourers
Nizamuddin,
Sirajuddin,
Mainuddin sons of Bafati and Bafati
himself entered into his house at about
02:00 a.m. In the night of 20.04.2001 they
forcefully took away his 14 years old
daughter Rizwana. When his niece Kallo
opposed, they threatened to shoot her. Till
now his daughter has not come back. After
return of his wife he is informing the police
for taking appropriate action. On the basis
of the aforesaid complaint a case under
Sections 363, 366A and 506 IPC was
lodged against the accused persons and the
charge sheet was submitted in the aforesaid
sections after the investigation. The case
was committed to the court of sessions
which was transferred to the Court of ASJ,
Court No.12, Varanasi and thereafter it was
transferred to the Court of ASJ/Fast Track
Court No.1, Varanasi.

4. After recording the evidence of
victim PW-3, an application under Section
311 CrPC was moved that the statement of
the victim recorded under Section 164
CrPC could not be proved. Hence, the
concerned witness be summoned for reexamination to prove the statement under
Section 164 CrPC. It has also been averred
that during the course of deposition she was
so affraid that she had forgotten to depose
about the same, hence, it is expedient to
recall the witness for proving her statement
recorded under Section 164 CrPC.

5. The application was opposed by the
defence but it was allowed on the ground
that during the course of examination-inchief, no evidence of the witness could be
recorded for proving her statement under
Section 164 CrPC and accordingly the
application was allowed and the witness
was summoned for re-examination.

6. Being aggrieved, the present
application has been moved by the accused
Sirajuddin that the informant Munir had
lodged a false and fabricated FIR on which
basis the charge-sheet has been submitted
by the IO. The trial court has allowed the
application without applying judicial mind
just to fill up lacuna of the prosecution case
which is illegal, unjust and is liable to the
quashed. During the examination of the
victim PW-3, she was questioned in respect
of her statement under Section 164 CrPC
and in fact on the contradiction and
omission put by her, there was no
justification for the trial court to pass the
impugned order. The statement under
section 164 CrPC has not been exhibited
but it does not make any difference in the
case as the statement under section 164
CrPC is admissible in evidence under
Section 80 of the Indian Evidence Act
without its formal proof. In the garb of the
3 All. Sirajuddin Vs. State of U.P. & Anr.
971
impugned order now prosecution wants to
fill lacuna of the prosecution which cannot
be permitted because it will amount to
unfair trial, therefore, the impugned order
dated 03.05.2005 be quashed.

7. During the course of hearing of this
application opposite party no.2 left parvi
though a counter affidavit had been filed on
behalf of opposite party no.2, the victim of
the case in support of the impugned order
and against the petition against which a
rejoinder affidavit has also been produced.
At the time of hearing none appeared from
the side of opposite party no.2 hence heard
Sri Dhirendra Kumar Srivastava, learned
counsel for the applicant and learned AGA
for the State and the application is decided
on merit.

8. Before concluding the case it
would be appropriate to reproduce section
311 CrPC alongwith relevant citations
which are as under:-

9. For convenience Section 311 CrPC
is reproduced as under:-

"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."

10. From the above, it is very much
clear that there are two part of this Section.
According to first part of the Section, the
Court can exercise the power :-

(1) to summon any person as a
witness, or.

(2) to examine any persons in
attendance, though not summoned as a
witness, or,

(3) to recall and re-examine any
person already examined.

The
second
part,
which
is
mandatory and imposes an obligation on
the Court:-

(1) to summon and examine, or

(2) to recall and re-examine any
such person, if his evidence appears to be
essential to the just decision of the case.

11. In Raja Ram Prasad Yadav Vs.
State of Bihar and another, AIR 2013 SC
3081, it has been held that it is, therefore
imperative that invocation of Section 311
CrPC 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 provisions, namely, for achieving a
just decision of the case. The power vested
under the said provisions is made available
to any court at any stage in any inquiry or
trial or other proceedings initiated under
the code for the purpose of summoning any
person as a witness or for examining any
persons in attendance, even though not
summoned as witnesses or to re-call or reexamine any person in attendance. In so far
as recalling and re-examining of any person
already
examined,
the
court
must
necessarily consider and ensure that such
re-call and re-examination of any person,
appears in the view of the court to be
essential for the just decision of the case.

12. The averments of paragraphs-14
to 17 in VN Patil Vs. Niranjan Kumar
and others, (2021) 3 SCC 661 are
relevant, hence they are reproduced as
under :-

"14.
The
object
underlying
Section 311 CrPC is that there may not be
972 INDIAN LAW REPORTS ALLAHABAD SERIES
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".

15. The principles related to the
exercise of the power under Section 311
CrPC have been well settled by this Court
in Vijay Kumar v. State of U.P., (2011) 8
SCC 136 : (2011) 3 SCC (Cri) 371 : (2012)
1 SCC (L&S) 240 : (SCC p. 141, para 17)

"17. 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
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 Smt
Ruchi Saxena as a court witness, the High
Court did not examine the reasons assigned
by the learned Special Judge as to why it
was not necessary to examine her as a
court witness and has given the impugned
direction without assigning any reason."

16. This principle has been
further reiterated in Mannan Shaikh v.
State of W.B., (2014) 13 SCC 59 : (2014) 5
SCC (Cri) 547 and thereafter in Ratanlal v.
Prahlad Jat, (2017) 9 SCC 340 : (2017) 3
SCC (Cri) 729 and Swapan Kumar
Chatterjee v. CBI, (2019) 14 SCC 328 :
(2019) 4 SCC (Cri) 839 . The relevant
paragraphs of Swapan Kumar Chatterjee v.
CBI, (2019) 14 SCC 328 : (2019) 4 SCC
(Cri) 839 are as under: Swapan Kumar
Chatterjee v. CBI, (2019) 14 SCC 328 :
(2019) 4 SCC (Cri) 839, SCC p. 331, paras
10-11)

"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."

17. The aim of every court is to
discover the truth. Section 311 CrPC is one
of many such provisions which strengthen
3 All. Sirajuddin Vs. State of U.P. & Anr.
973
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."

13. In this case the statement of PWs1, 2 and 3 had already been recorded before
the application under Section 311 CrPC
was moved. For the purposes of this
petition the statement of the victim PW-3 is
material. This witness has deposed on oath
in the court that in the fateful night none of
the accused had entered in her house and
none of the accused had taken away her
forcefully and none of the accused had
raped her. This witness was declared
hostile and she was cross-examined by the
ADGC of the court in which she deposed
that she had gone to Himachal Pradesh with
accused Nijamuddin at her own will where
accused had not co-habitated with her. She
was taken back therefrom by the Varanasi
Police and her statement was recorded
before the Magistrate. She had falsely
stated that in the fateful night accused
persons had entered in her house, closed
her mouth with clothes and had taken
herself forcefully near the grave. The
witness clearly deposed that the evidence
adduced by her in the court is true and
correct. She had given the statement under
Section 164 CrPC after being directed by
some one else. The witness further totally
denied the statement recorded under
Section 164 CrPC. The witness also
deposed that at that time also she loved
Nijamuddin and even today. The witness
also denied the statement recorded by the
IO in favour of the prosecution under
Section 161 CrPC.

14. According to this Court, from the
statement of the victim, it is very much
clear that she had neither supported the
prosecution version nor the statements
under Sections 161 and 164 CrPC. The
opportunity to prove the statement under
Section 164 CrPC was very much available
to the prosecution which had not been
availed. From the perusal of the statement
of the victim it is very much clear that the
witness has been examined with regard to
Section 164 CrPC in 2-3 pages, therefore, it
cannot be said that some more opportunity
ought to have been provided to the
prosecution to prove the statement under
Section 164 CrPC. It is very much clear
that though the victim has accepted that she
was produced before the Magistrate and her
statement was recorded and she had signed
it but she has not owned the statement
saying that it was not her statement with
free will but it was under compulsion.
According to this Court, in such a situation
it was not necessary for the Court to
summon the witness again under Section
311 CrPC. As the witness has already
deposed that she had given the statement
before the Magistrate, therefore, the same
could be exhibited without any further
formality.

15. So far as the evidentiary value of
the statement under Section 161 and 164
CrPC is concerned, both have almost equal
value and if the same are not supported
during the trial, the witness may be
contradicted.

16. In Utpal Das Vs. State of West
Bengal, AIR 2010 SC 1894 and in
Baijnath Singh Vs. State of Bihar, 2010
(70) ACC 11 (SC), it has been held that an
FIR does not constitute a substantive
evidence. The statement of a witness
recorded under Sections 161 or 164 CrPC
can only be used to contradict or
corroborate the witness under Section 145
974 INDIAN LAW REPORTS ALLAHABAD SERIES
or 157 of the Indian Evidence Act but it
cannot be used as substative evidence.

17. In view of the above also, it can
be said that the witness had been examined at
length with regard to her statement under section
161 and 164 CrPC, there was no need to recall her
again for re-examination. When the witness had
not corroborated her statement recorded under
Section 164 CrPC and she had been already
contradicted under Section 145 of the Indian
Evidence Act, even then if she was summoned,
certainly it would cause a prejudice to the accused
persons. In view of the testimony of the victim
recorded in the court it can safely be said that
those statements are nothing but a waste paper.
According to this Court, there was no occasion to
pass the impugned order considering the nature of
the evidence of the victim PW-3. The testimony
on oath in the court during the course of trial has
overriding effect.

18. From the perusal of the above, it is very
much clear that the victim PW-3 has not
supported her statement recorded under Sections
161 and 164 CrPC and her statement on oath is
contrary to the prosecution. Hence, the order for
recalling the witness was of no avail. Thus, the
application under Section 482 CrPC deserves to
be allowed to prevent abuse of the process of the
Court and to secure the ends of justice.

19. One more ground has arisen during the
pendency of this petition that in view of the
judgment of Asian Resurfacing of Road Agency
Private Limited Vs. Central Bureau of
Investigation, (2018) 16 SCC 299, the trial court
started the trial treating the stay order passed by
this Court to be vacated and recorded the
statements of rest of the witnesses, the statement
of the accused under Section 313 CrPC and after
hearing the argument, acquitted the accused
persons giving benefit of doubt on 30.09.2022. A
photocopy of the certified copy of the judgment
has been produced by the learned counsel for the
applicant for perusal of this Court.

20. It is noteworthy that the accused persons
had taken shelter of this Court and had obtained
interim stay order and when the interim stay order
passed by this Court was ignored in view of the
judgment in Asian Resurfacing (supra), the State
of UP or the respondent no.2 had not questioned
the proceedings of the trial court, therefore, the
respondents have no ground to claim the benefit of
the same. If the respondents feel themselves to be
aggrieved, the remedy is open for them to seek
remedy available under the law against the order
and judgement of acquittal.

21. On the basis of above, this Court is of
the considered view that the application is liable to
be allowed. (Though it has no importance after
decision of the case)

Order

22. The application under Section 482
CrPC is allowed and the impugned order dated
03.05.2005 regarding summoning PW-3 for reexamination under Section 311 CrPC is hereby
quashed.

23. A copy of this judgment be sent to
the Court of ASJ/FTC-I, Varanasi to keep
on record.
----------
(2024) 3 ILRA 974
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482. No. 5419 of 2021

Jiyaullah ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties