# Smt. Anita Agarwal v. State of U.P. & Anr

- **Citation:** (2021) 1 ILRA 1006
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-24
- **Case number:** Application u/s 482 No. 11808 of 2020
- **Bench:** Deepak Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anita-agarwal-v-state-of-u-p-anr-46093
- **Pages:** 12

## Headnote

A. Criminal Law - Application u/s 482 -
For quashing of order - Code of Criminal
Procedure: Section 311, 313 - Lacuna in
the prosecution must be construed to be
an inherent weakness in the case and a
latest wedge in the prosecution case and
advantage of it should normally go to the
accused in the trial of the case. (Para 13)

B. Code of Criminal Procedure: Section
311 - In the first part, the word used is "may"
and thereby giving jurisdiction to the Court to
pass order as per its discretion and the second
part uses the word "shall" which makes
obligatory for the Court to pass such order. The
provision of Section 311 Cr.P.C., thus, first is a
supplementary provision enabling and in certain
circumstances imposition on the Court with the
duty of examining a material witness who could
not brought before it. (Para 15)

It is true that the power of the Court under
Section 311 Cr.P.C. is of a very wide in nature
but in what manner such power should be
exercised has been a matter of discretion before
the superior Courts. (Para 16)

Scope and object of the provision is to
enable the Court to determine the truth
and to render a just decision after
discovering
all
relevant
facts
and
obtaining proper proof of such facts, to
arrive at a just decision of the case. Power
must
be
exercised
judiciously
and
not
capriciously or arbitrarily, as any improper or
capricious exercise of such power may lead to
undesirable results. An application u/s 311
Cr.P.C. must not be allowed only to fill up a
lacuna in the case of the prosecution, or of the
defence, or to the disadvantage of the accused,
or to cause serious prejudice to the defence of
the accused, or to give an unfair advantage to
the opposite party. Further, the additional
evidence must not be received as a disguise for
retrial, or to change the nature of the case
against either of the parties. Such a power must
be exercised, provided that the evidence that is
likely to be tendered by a witness, is germane
to the issue involved. An opportunity of rebuttal
however, must be given to the other party. The
power conferred 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 great caution and
circumspection. (Para 23)

In the present case, it is clear that the
document
which
are
required
to
be
summoned
are
in
possession
of
the
applicant-accused
and
they
have
got
information under Right to Information Act
and documents which relate to newspaper
are not admissible in evidence not required
to summon and further Hon'ble coordinate
Bench of this Court had directed to expedite
the
trial.
The
applicant-accused
have
opportunity to put his case of alibi at the
time of statement under section 311 Cr.P.C.
and produce the documents as defence
evidence. (Para 24, 26)

Application dismissed. (E-3)

Precedent followed:

## Text

_Characters 0–39,901 of 42,380. This is a partial read: ask again with offset=39901 for what follows._

1006 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)01ILR A1006
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2020

BEFORE

THE HON'BLE DEEPAK VERMA, J.

Application u/s 482 No. 11808 of 2020

Smt. Anita Agarwal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Anat Ram Gupta

Counsel for the Opposite Parties:
A.G.A., Sri Anurag Dubey

A. Criminal Law - Application u/s 482 -
For quashing of order - Code of Criminal
Procedure: Section 311, 313 - Lacuna in
the prosecution must be construed to be
an inherent weakness in the case and a
latest wedge in the prosecution case and
advantage of it should normally go to the
accused in the trial of the case. (Para 13)

B. Code of Criminal Procedure: Section
311 - In the first part, the word used is "may"
and thereby giving jurisdiction to the Court to
pass order as per its discretion and the second
part uses the word "shall" which makes
obligatory for the Court to pass such order. The
provision of Section 311 Cr.P.C., thus, first is a
supplementary provision enabling and in certain
circumstances imposition on the Court with the
duty of examining a material witness who could
not brought before it. (Para 15)

It is true that the power of the Court under
Section 311 Cr.P.C. is of a very wide in nature
but in what manner such power should be
exercised has been a matter of discretion before
the superior Courts. (Para 16)

Scope and object of the provision is to
enable the Court to determine the truth
and to render a just decision after
discovering
all
relevant
facts
and
obtaining proper proof of such facts, to
arrive at a just decision of the case. Power
must
be
exercised
judiciously
and
not
capriciously or arbitrarily, as any improper or
capricious exercise of such power may lead to
undesirable results. An application u/s 311
Cr.P.C. must not be allowed only to fill up a
lacuna in the case of the prosecution, or of the
defence, or to the disadvantage of the accused,
or to cause serious prejudice to the defence of
the accused, or to give an unfair advantage to
the opposite party. Further, the additional
evidence must not be received as a disguise for
retrial, or to change the nature of the case
against either of the parties. Such a power must
be exercised, provided that the evidence that is
likely to be tendered by a witness, is germane
to the issue involved. An opportunity of rebuttal
however, must be given to the other party. The
power conferred 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 great caution and
circumspection. (Para 23)

In the present case, it is clear that the
document
which
are
required
to
be
summoned
are
in
possession
of
the
applicant-accused
and
they
have
got
information under Right to Information Act
and documents which relate to newspaper
are not admissible in evidence not required
to summon and further Hon'ble coordinate
Bench of this Court had directed to expedite
the
trial.
The
applicant-accused
have
opportunity to put his case of alibi at the
time of statement under section 311 Cr.P.C.
and produce the documents as defence
evidence. (Para 24, 26)

Application dismissed. (E-3)

Precedent followed:

1. Arslan Zaheer Vs St. of U.P. & anr., 2016 (2)
JIC 189 (Allahabad) (Para 8)

2. Hanuman Ram Vs St. of Raj. & ors., 2009
(64) ACC 895 (Para 17)

3. Vijay Kumar Vs St. of U.P. & ors., (2011) 11
SCR Page 893 (Para 18)
1 All. Smt. Anita Agarwal Vs. State of U.P. & Anr.
1007
4. Darya Singh & ors. Vs St. of Pun., AIR 1965
SC 328 (Para 21)

5. Moirangthem Tomba Singh Vs St. of Mani.
1984 Cr.L.J. 536 (Para 22)

6. Natasha Singh Vs C.B.I., 2013 (2) UPCr.R 605
(Para 23)

Precedent distinguished:

1. Union Territory of Dadra & Haveli & anr. Vs
Fatehsingh Mohansingh Chauhan, 2006 (3) JIC
75 SC (Para 7)

Present application has been to quash the
order
dated
27.02.2020,
passed
by
Additional Session Judge, Firozabad.

(Delivered by Hon'ble Deepak Verma , J.)

1. Heard Sri Anant Ram Gupta, learned
counsel for the applicant, Sri Anurag Dubey,
learned counsel for the opposite party no.2,
learned AGA on behalf of the State and perused
the record.

2. This application u/s 482 Cr.P.C. has
been filed by applicant to quash the order dated
27.02.2020 passed by Additional Session
Judge, Court No.3, Firozabad in application
under section 311 Cr.P.C. in Session Trial
No.5586 of 2016 (State vs. Rohan Singhal and
others ) arising out of Case Crime No.648 of
2016, under sections 364A, 302, 201, 404,
120B I.P.C., Police Station Tundla, District
Firozabad has been rejected.

3. Learned trial court by order dated
27.02.2020 decided two applications i.e.
Application No.143-B and Application No.144B. Order in challenge before this Court by the
present application is against rejection of
Application No.144-B, not against 143-B,
therefore, this Court has to consider the legality
and illegality of the application of accused
applicant under section 144-B.

4. Learned counsel for the applicant
submits that on 24.08.2016 informant lodged
FIR under section 364-A against three persons
namely, Rohan Singhal, Pawan and Anuj Vij,
alleged therein that he saw deceased Aditya,
Rohan and Rohan's elder brother Pawan
altogether were coming out from Orchid Green.
Deceased Aditya on 22.08.2020 at about 8.30
went to Gim (Gymnasium) to exercise by his ITen Car No.UP 33A 1782 but he did not come
back. At about 11.07 informant received SMS
from unknown number that we caught your son
and threatened them not to inform police.
Thereafter again call came from Mobile
No.9756674130 and they informed about
deceased Aditya's car location and demanded
Rs.10 crore and threatened if demand is not
fulfilled, Aditya might be killed. When mother
of Aditya enquired from Anuj, they did not talk
properly.

5.

Investigating
officer
after
collecting evidence submitted chargesheet
and charges were framed and trial started as
S.T. No.5586 of 2016 under sections 364A,
302, 201, 404, 120-B I.P.C. started against
applicant and other co-accused. Learned
counsel for the applicant further submitted
that the applicant has taken plea of alibi
before trial court and at present prosecution
examination is going on which is clear
from
the
rejection
order.
During
prosecution examination, applicant moved
application under section 311 Cr.P.C. with
the prayer to just decision of case, summon
the noted witnesses and original record
given below:-

(i) Compete detail of payment of
original
statement
account
no.344104000004633 of Sri Pavan Singhal
by the manager of I.D.B.I. Bank Branch
Station Road Ganesh Nagar firozabad from
15.08.2016 to 25.08.2016.
1008 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Compete detail of staying bill
No.1373 folio no.4471 in register no.3608
room no.402 of the manager of Hotel Willo
Bans Tourism near left Mal Road Shimla,
Himachal Pradesh.

(iii) Complete original record
with
detail
of
Ticket
of
helicopter
passenger namely (1) Aghira Singhal (2)
Pawan Singhal (3) Anita Agrawal and (4)
Richa Singhal, P.N.R. number M.V.D.H.
1716822 Booking dated 1.8.2018 travelling
dated 23.01.2016 and cancellation of said
Passengers of Officer Incharge Hemalayan
Helicopter services Sri Mata Vaishanav
Devi Shrine board Centre Office Katra,
District Ricy Jammu-Kashmir.

(iv) Original record relating to
travel on yamuna Express way about Car
Registration
no.U.C.S.0097884
from
20.8.2016 to 24.8.2016 Application filed by
Pavan Singhal before Chief Executive
Officer Yamuna Express way Industrial
Development
Authority
first
floor
commercial complex Block P-2 Sector
Amega-1,
Greater
Noida
PIN
Code
No.201308 District Gautam Buddh Nagar
dated 1.8.2017.

(v) Local editor of News paper
"Amar Ujala" including copy of said News
paper from "23.8.2016 and 24.8.2016"
gopal Ashram market, Amar Ujala Office,
Firozabad.

(vi) Local Editor of News paper
"Dainik Jagaran (I.C.I. upper floor of
A.T.M.) Suhag Nagar Firozabad including
copy of said news paper dated 24.08.2016.
For the proper and just decision and stay
the further proceeding of S.S.t. No.5586 of
2016, Case Crime No.648 of 2016 under
sections 364A, 302, , 404, 120B I.P.C., P.S.
Tundla District Firozabad (State vs.Rohan
Singhal and others) during the pendency of
this Criminal Misc.Application (U/sa 482
Cr.P.c.) before this Hon'ble Court.

6. Learned counsel for the applicant
further submitted that trial court after
giving opportunity to opposite party and
hearing both the parties, rejected the
application
of
the
applicant
without
applying his judicial mind and arbitrarily
and without considering the fact that the
applicant wanted to prove his alibi plea by
summoning the witnesses and documentary
evidence and witness having documents
which are required to be proved the alibi as
the case of the applicant is that he was not
present at the place of incident she
alongwith her son and daughter-in-law
went to visit Mata Vasnaodevi at JammuKashmir and documents which had been
asked to be summoned are essential to just
and fair decision of the case and file
present application on following grounds
which is clear from the provision of Section
311 Cr.P.C. that section in two parts. First
part gives purely discretionary power to the
courts and enables it to summon the
material witness at any stage of enquiry,
trial or proceedings, on the other hand
second part is mandatory and compels to
take any step if it is essential to do the
justice. Hon'ble Apex Court held in various
decision that the object of Section 311
Cr.P.c. is to avoid the failure of justice
power provided under section 311 Cr.P.C.
is to be exercised judiciously in this regard.
It has been held that whether it is essential
to be just decision of the case. He further
submitted that it is well settled that
exercising power under section 311 Cr.P.C.
should be restored to only with the object
of finding out the truth or obtaining proper
proof of such facts which lead to a just and
correct decision of the case. It is argued
that it is a cardinal rule in the law of
1 All. Smt. Anita Agarwal Vs. State of U.P. & Anr.
1009
evidence that the best available evidence
should brought before the court to prove a
fact or the points in issue but it is left either
for the prosecution of for the defence to
establish its respective case by adducing
the best available evidence and the court is
not empowered under the provisions of the
code to compel either the prosecution or the
defence to examine any particular witness
or witnesses of their sides. It is the duty of
a court not only to do justice but also to
ensure that justice is being done.

7. Learned counsel for the applicant
has placed reliance upon the judgments of
Hon'ble Apex Court in Union Territory of
Dadra & Haveli & Anr. vs. Fatehsingh
Mohansinh Chauhan reported in 2006(3)
JIC 75 Supreme Court,
in which
respondent accused raised the plea of alibi
and claimed that he was present in the
chamber of Sri S.P.Marwah, the then
Collector, Dadra and Nagar haveli, Silvassa
as a meeting has been called there being a
prominent member of a political party he
participated and he took plea of alibi under
section 311 Cr.P.C. Hon'ble Apex Court
allowed the application of the accusedapplicant and summon the collector as
witness. Hon'ble Apex Court considered
various judgments of Hon'ble Apex court in
paragraph 10, 11, and 12. The same is
reproduced below:-

 10. In Jamatraj Kewalji Govani
v. State of Maharashtra AIR 1968 SC 178
after analysis of the provision of Section it
was held as under in para 10 of the reports
:

"Section 540 is intended to be
wide as the repeated use of the word 'any'
throughout its length clearly indicates. The
section is in two parts. The first part gives
a discretionary power but the latter part is
mandatory. The use of the word 'may' in the
first part and of the word 'shall' in the
second firmly establishes this difference.
Under the first part, which is permissive,
the court may act in one of three ways : (a)
summon any person as a witness, (b)
examine any person present in court
although not summoned, and (c) recall or
re-examine a witness already examined.
The second part is obligatory and compels
the Court to act in these three ways or any
one of them if the just decision of the case
demands it. As the section stands there is
no limitation on the power of the Court
arising from the stage to which the trial
may have reached, provided the Court is
bona fide of the opinion that for the just
decision of the case, the step must be taken.
It is clear that the requirement of just
decision of the case does not limit the
action to some thing in the interest of the
accused only. The action may equally
benefit the prosecution. ..............."

 11. 11. In Mohanlal Shamji Soni
v. Union of India & Anr. AIR 1991 SC 1346
it was observed that it is a cardinal rule in
the law of evidence that the best available
evidence should be brought before the
Court to prove a fact or the points in issue.
But it is left either for the prosecution or
for the defence to establish its respective
case by adducing the best available
evidence and the Court is not empowered
under the provisions of the Code to compel
either the prosecution or the defence to
examine
any
particular
witness
or
witnesses on their sides. It is the duty of a
Court not only to do justice but also to
ensure that justice is being done. It was
further held that the second part of the
Section does not allow for any discretion
but it binds and compels the Court to take
any of the aforementioned two steps if the
fresh evidence to be obtained is essential to
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
the just decision of the case. It was
emphasized that power is circumscribed by
the principle that underlines Section 311
Cr.P.C., namely, evidence to be obtained
should appear to the court essential to a
just decision of the case by getting at the
truth by all lawful means. Further, that the
power must be used judicially and not
capriciously or arbitrarily. It was further
observed that evidence should not be
received as a disguise for a retrial or to
change the nature of the case against either
of the parties and the discretion of the
Court must obviously be dictated by
exigency of the situation and fair play and
good sense appear to be the safe guides
and that only the requirement of justice
command the examination of any person
which would depend on the facts and
circumstances of each case.

Rajendra Prasad v. Narcotic Cell
(1999) 6 SCC 110 is a decision where the
contention that the prosecution should not be
permitted to fill in lacuna was examined
having regard to the peculiar facts where the
exercise of power under Section 311 Cr.P.C.
second time was challenged and, therefore, it
is necessary to notice the facts of the case in
brief. The accused along with some other
persons was facing trial for offences under
Sections 21, 25 and 29 of the NDPS Act. The
prosecution and the defence closed their
evidence on 19.9.1997 and the case was
posted for further steps and on 7.3.1998, after
few more dates, at the instance of the
prosecution two witnesses who had already
been examined were reexamined for the
purpose of proving certain documents for
prosecution. After they had been examined
and the evidence had been closed, the case
was posted for hearing arguments, which was
heard in piecemeal on different dates.
Subsequently
on
7.6.1998,
the
Public
Prosecutor moved an application seeking
permission to examine Dalip Singh, S.I. and
two other persons. Though the application
was strongly opposed by the counsel for the
accused, the trial Court allowed the same in
exercise of its power under Section 311
Cr.P.C. and summons were issued to the
witnesses. The challenge raised to the order
of the learned Sessions Judge by filing a
revision was dismissed by the High Court. In
appeal before this Court it was contended
that in the garb of exercise of power under
Section 311 Cr.P.C., a Court cannot allow
the prosecution to re-examine prosecution
witnesses in order to fill up lacuna in the case
specially having regard to the fact that Dalip
Singh witness was never tendered by the
prosecution for cross-examination and PW.4
Suresh Chand Sharma had also not been
cross-examined by the State. Repelling the
contention raised on behalf of the accused it
was held :

"7. It is a common experience in
criminal courts that defence counsel would
raise objections whenever courts exercise
powers under Section 311 of the Code or
under Section 165 of the Evidence Act,
1872 by saying that the court could not "fill
the lacuna in the prosecution case". A
lacuna in the prosecution is not to be
equated with the fallout of an oversight
committed by a Public Prosecutor during
trial, either in producing relevant materials
or in eliciting relevant answers from
witnesses. The adage "to err is human" is
the recognition of the possibility of making
mistakes to which humans are prone. A
corollary of any such laches or mistakes
during the conducting of a case cannot be
understood as a lacuna which a court
cannot fill up.

8. Lacuna in the prosecution must
be understood as the inherent weakness or
a latent wedge in the matrix of the
1 All. Smt. Anita Agarwal Vs. State of U.P. & Anr.
1011
prosecution case. The advantage of it
should normally go to the accused in the
trial of the case, but an oversight 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."

Finally, it was held that the
proposition that the Court cannot exercise
power of re-summoning any witness if once
that power was exercised, cannot be
accepted nor can the power be whittled
down merely on the ground that the
prosecution discovered laches only when
the defence highlighted them during
arguments. Similar view has been taken in
P. Chhaganlal Daga v. M. Sanjay Shaw
(2003) 11 SCC 486 where permission
granted by the Court to a complainant to
produce additional material after evidence
had been closed and case was posted for
judgment
was
upheld
repelling
the
contention that production of the document
at that belated stage would amount to
filling in a lacuna.

12. A conspectus of authorities
referred to above would show that the
principle is well settled that 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 of
such facts which lead to a just and correct
decision of the case, this being the primary
duty of a criminal court. Calling a witness
or
re-examining
a
witness
already
examined for the purpose of finding out the
truth in order to enable the Court to arrive
at a just decision of the case cannot be
dubbed as "filling in a lacuna in
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.

8. This Court in Arslan Zaheer
vs.State of U.P. & another reported in
2016 (2) JIC 189 (Allahabad). In this case
allegation against the accused is that he
kidnapped victim girl but the case of the
accused was that victim girl went with the
applicant on her own volition and stayed in
Hotel at Allahabad and where she had filled
hotel register in her own handwriting.

9. Per contra, learned AGA as well as
learned counsel for the informant opposed
the contention raised by the learned counsel
for the applicant. Learned counsel for the
opposite party no.2 opposed the application
by way of filing reply inter-alia on the
ground that application has been filed with
a view to delay the proceeding and to fill
up lacuna, as such, same deserves to be
dismissed. Learned court below taking note
of the pleadings, adduced on record by
respective parties, dismissed the application
by
concluding
that
applicant-accused
cannot be allowed to fill up lacuna in
defence. He further submitted that by way
of counter affidavit, he has given various
facts which has not been disclosed by
learned counsel for the applicant as in para
5 of the counter affidavit that many
adjournments have been taken from the
side of the applicant-deceased, which is
evident from perusal of the order-sheet of
the trial. He further pointed out that those
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
adjournments were being sought before
spreading of pandemic Covid-19. He
stated that intention of the accused persons
is that they are not interested to conclude
the trial. He further submitted in para 7 of
the counter affidavit that accused persons
moved various applications on different
issues to delay the trial. An application
moved before the learned trial court under
section 311 Cr.P.c. to recall the P.W.-2 on
the ground of changing the counsel for the
accused and when the same was rejected
vide order dated 20.03.2018, then that order
was challenged before this Court with an
affidavit. Thereafter opposite party no.2
moved an application by means of Criminal
Misc.Application u/s 482 Cr.P.C. No.28264
of 2018 before this Court with a prayer that
a direction be issued to the court below to
decide S.S.T. No.5586 of 2016 (State vs.
Rohan Singhal and others) within a definite
period. The same was disposed of on
16.08.2018 with the direction to the court
below
to
decide
aforesaid
case
in
accordance with law without granting
unnecessary adjournments to either of the
parties
as
expeditiously
as
possible
preferably within a period of eight months
from the date of production of certified
copy of this order. When order dated
16.08.2018 passed by this Court was not
complied with thereafter opposite party
no.2 moved Contempt Application (Civil)
No.3817 of 2019 before this Court and
same was disposed of as the presiding
officer to finalize the proceeding in
question expeditiously preferably within
three months without according even a
single adjournment to either of the parties
and if necessary day to day hearing may be
ensured in the matter so that the order in
question must be complied with.

10. Learned counsel for the opposite
party no.2 submitted that applicant-accused
by way of application under section 311
Cr.P.C. several documents have sought to
be summoned. First is statement about bank
account of Pavan Singhal which is in
possession of Pavan Singhal and this is the
banking record approved by the banking
authorities, hence there is no need to call
the banking authority before the learned
court below to prove the same. With regard
of her journey alongwith the co-accused
Pavan Singh and family collected through
the Right to Information Act they had been
provided hence, there is no need to verify
and prove the same by the authorities of the
Yamuna Expressway and regarding service
of Helicopter to Mata Vashno Devi which
was booked on 9th thereafter it was
cancelled. Booking online and obtaining
PNR number is not the perfect evidence to
prove that a person who booked the ticket
boarded on the same because of the ticket
of the service of the Helicopter. Ticket of
the service of the Helicopter was booked
through online and the said booking may be
done from the home of anyone. Thereafter
the applicant wanted to summon the
original record relating to travel of Yamuna
Expressway.

11. Learned counsel for the opposite
party no.2 replied in para 12 of the affidavit
that the applicant now claimed that she
alongwith co-accused went to Shimla
where she stayed in a Hotel. Thereafter
other information are based on newspaper
which are not admissible in evidence. He
further
submitted
that
statutory
admissibility of records which are required
by the applicant and co-accused are
statement of the bank account, documents
of the helicopter services, documents
provided by the Yamuna Expressway
authority under R.T.I. Act are procurable so
there is no need to summon the officer
concerned to proof the same. If the
1 All. Smt. Anita Agarwal Vs. State of U.P. & Anr.
1013
applicant
wants
to
produce
defence
witnesses then she or other co-accused has
liberty to produce them as defence
witnesses before the trial court and there is
no need to call them as Court witnesses to
prove the documents submitted by the
applicant at the stage of prosecution
witnesses. Applicant by way of this
application only try to delay the trial.

12. I have heard learned counsel for
the parties and gone through the record
carefully.

13. It has been repeatedly held by the
Hon'ble Apex Court as well as this Court
that lacuna in the prosecution must be
construed to be an inherent weakness in the
case and a latest wedge in the prosecution
case and advantage of it should normally
go to the accused in the trial of the case.

14. To verify the fact, it is relevant to
consider Section 311 Cr.P.C. which are
reproduced here-in-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."

15. A bare perusal of Section goes to
show that it is divided in two parts. In the
first part, the word used is "may" and
thereby giving jurisdiction to the Court to
pass order as per its discretion and the
second part uses the word "shall" which
makes obligatory for the Court to pass such
order. The provision of Section 311
Cr.P.C., thus, first is a supplementary
provisions
enabling
and
in
certain
circumstances imposition on the Court with
the duty of examining a material witness
who could not brought before it. It is
couched in the widest possible terms and
clause for non limitation either with regard
to the stage of the trial nor with regard to
the manner, it should be exercised.

16. It is true that the power of the
Court under Section 311 Cr.P.C. is of a
very wide in nature but in what manner
such power should be exercised has been a
matter of discretion before the superior
Courts.

17. In the case of Hanuman Ram vs.
State of Rajasthan and others 2009 (64)
ACC 895, the Hon'ble the Apex Court has
laid down as to what is the object of the
Section 311 Cr.P.C and how the discretion
provides thereunder should be exercised.
Para 6 of the judgment reads as follows:

"The object underlying section
311 of the Code 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 section is not limited only
for the benefit of the accused, and it will
not be an improper exercise of the powers
of the Court to summon a witness under the
section merely because the evidence
supports the case for the prosecution and
not that of the accused. The section is a
general section which applies to all
proceedings, enquiries and trials under the
Code and empowers Court to issue
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
summons to any witness at any stage of
such proceedings, trial or enquiry. In
section 311 the significant expression that
occurs is "at any stage of inquiry or trial or
other proceeding under this Code". It is,
however, to be borne in mind that whereas
the section confers a very wide power on
the Court on summoning witnesses, the
discretion conferred is to be exercised
judiciously, as wide the power the greater
is the necessity for application of judicial
mind."

18. Again in the case of Vijay
Kumar vs State of U.P and others (2011)
11 SCR Page 893, the Hon'ble the Apex
Court has held as follows:

"It
is
hardly
needs
to
be
emphasized that power under Section 311
should be exercised for the just decision of
the case. The wide discretion conferred on
the court to summon a witness must be
exercised judicially, as wider the power,
the greater is the necessity for application
of the judicial mind. Whether to exercise
the power or not would largely depend
upon the facts and circumstances of each
case. As is provided in the Section, power
to summon any person as a witness can be
exercised if the court forms an opinion that
the examination of such a witness is
essential for just decision of the case."

19. At another place of the same
judgment the following observation has
been made by Hon'ble the Apex Court:

"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
of 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."

20. The Apex Court while upholding
as above observed that in the application to
recall the witnesses, no specific reasons
were mentioned as to how the examination
of the witnesses proposed to be summoned
was necessary and arrived at the conclusion
and after discretion that the power under
section 311 of the Code of Criminal
Procedure 1973 were exercised arbitrarily
by the Court."

21. In Darya Singh and others Vs.
State of Punjab, AIR 1965 SC 328 a Full
Bench of the Apex Court has held as
under:-

"In our opinion, this argument is
entirely misconceived. It is well settled that in a
murder case, it is primarily for the prosecutor
to decide which witnesses he should examine in
order to unfold his story. It is obvious that a
prosecutor must act fairly and honestly and
must never adopt the device of keeping back
from the Court eye-witnesses only because their
evidence is likely to go against the prosecution
case. The duty of the prosecutor is to assist the
court in reaching a proper conclusion in regard
to the case which is brought before it for trial. It
is no doubt open to the prosecutor not to
examine witnesses who, in his opinion have not
witnessed the incident, but normally he ought to
examine all the eye-witnesses in support of his
case. It may be that if a large number of
persons have witnessed the incident, it would be
open to the prosecutor to make a selection of
those witnesses, but the selection must be made
fairly and honestly and not with a view to
suppress inconvenient witnesses from the
1 All. Smt. Anita Agarwal Vs. State of U.P. & Anr.
1015
witness-box. If at the trial it is shown that
persons who had witnessed the incident have
been deliberately kept back, the Court may
draw an inference against the prosecution and
may, in a proper case, regard the failure of the
prosecutor to examine the said witnesses as
constituting a serious infirmity in the proof of
the prosecution case. In such a case if the ends
of justice require, the Court may even examine
such witnesses by exercising its power under
Section 540; but to say that in every murder
case, the Court must scrutinise the police diary
and make a list of witnesses whom the
prosecutor must examine is virtually to suggest
that the Court should itself take the role of a
prosecutor. The powers of the Court under
Section 540 can and ought to be exercised in
the interests of justice whenever the Court feels
that the interests of justice so require, but that
does not justify Mr. Bhasin's contention that the
failure of the Court to have exercised its power
under Section 540 has introduced a serious
infirmity in the trial itself."

22. In Moirangthem Tomba Singh Vs.
State of Manipur, 1984 Cr.L.J. 536 it has
been observed as under:-

"That apart as submitted by the
learned public prosecutor, reviewing on the
decision Darya Singh v. State of Punjab (AIR
1965 SC 328) : 1965 (1) Cri LJ 350). The duty
of the prosecution is normally to examine all
the eye-witnesses but if the selection was made
fairly and honestly and not with a view to
suppress inconvenient witness from the witness
box no adverse inference could be drawn
against the prosecution."

23. The Hon'ble Apex Court in the case
of Natasha Singh Vs. C.B.I., reported in 2013
(2) UPCr.R 605, has stated that the scope and
object of the provision is to enable the Court to
determine the truth and to render a just decision
after discovering all relevant facts and obtaining
proper proof of such facts, to arrive at a just
decision of the case. Power must be exercised
judiciously and not capriciously or arbitrarily,
as any improper or capricious exercise of such
power may lead to undesirable results. An
application under Section 311 Cr.P.C. must not
be allowed only to fill up a lacuna in the case of
the prosecution, or of the defence, or to the
disadvantage of the accused, or to cause serious
prejudice to the defence of the accused, or to
give an unfair advantage to the opposite party.
Further, the additional evidence must not be
received as a disguise for retrial, or to change
the nature of the case against either of the
parties. Such a power must be exercised,
provided that the evidence that is likely to be
tendered by a witness, is germane to the issue
involved. An opportunity of rebuttal however,
must be given to the other party. The power
conferred 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
great caution and circumspection.

24. It is apparent from the impugned
order passed by the court below that
accused had enclosed the list of documents
which he wanted to summon are related
with Right to Information Act which legal
admissibility is not doubtful and others are
relating to newspaper which are not
admissible in evidence and the documents
which related bills of expenses of travel
and hotels would not required to be
summoned and further coordinate Bench of
this Court directed the court below to
expedite the matter and the accusedapplicant would have opportunity to put all
this in defence and thereafter prosecution
will have to cross them. The accused
having opportunity to state under section
313 Cr.P.C. Regarding his alibi as defence,
thereafter he could produce documents as
defence. No doubt, while exercising power
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
under section 311 Cr.P.C. Paramount
consideration of the court should be to do
justice to the case and the court can
summon a witness at any stage, if same is
filling up lacuna or loopholes. Similarly,
this Court has also held that material
essential for just decision of the case
ought to be taken on record. However, in
the case at hand, this court having
carefully
perused
the
explanation
rendered in the application filed under
section 311 Cr.P.C. as well as reasons
recorded by the learned Special Judge in
support of his decision finds no occasion
to summon the documents as required by
the applicant.

25.
Learned
counsel
for
the
applicant has placed reliance upon the
judgements of the Apex Court and this
Court. In both the cases facts are totally
different from the present case. In the
case of Union Terretory of Dadra &
Haveli (supra), the accused-applicant
took a plea of alibi in his statement under
section 313 Cr.P.C. which was recorded
after close of prosecution evidence and
submitted that he is a prominent member
of political party and at the time of
incident he was present in the chamber of
Collector. In the present case, the
applicant will have opportunity to take
plea of alibi and thereafter he may
produce evidence as per requirement. In
the case of Arslan Zaheer (supra), the
applicant moved an application under
Section 311 Cr.P.C. to summon the
register of the hotel for the purpose of
cross examination as the accused has to
proof his innocence because accused was
trapped in kidnapping case, on his
defence he had to prove that victim/girl
was gone with her own volition along
with co-accused and stayed in hotel and
filled up hotel register documents in her
own handwriting.

26. The power under section 311
Cr.P.C. is the discretion or the obligation
of the Court to summon or recall a
witness, but this discretion of the Court
cannot be forced to be used by the
accused
or
the
prosecution.
While
considering the present case it is clear
that the document which are required to
be summoned are having in possession of
the applicant-accused and they have got
information under Right to Information
Act and documents which relate to
newspaper are not admissible in evidence
not required to summon and further
Hon'ble coordinate Bench of this Court
had directed to expedite the trial. The
applicant-accused have opportunity to put
his case of alibi at the time of statement
under section 311 Cr.P.C. and produce
the documents as defence evidence.

27. Considering the facts of the
cases and in the end, I do not find any
illegality in the impugned order requiring
any interference by this Court in exercise
of inherent power under section 482
Cr.P.C. and consequently, the prayer for
quashing the impugned order dated
27.02.2020 passed by Additional Session
Judge,
Court
No.3,
Firozabad
in
application under section 311 Cr.P.C. in
Session Trial No.5586 of 2016 (State vs.
Rohan Singhal and others ) arising out of
Case Crime No.648 of 2016, under
sections 364A, 302, 201, 404, 120B
I.P.C., Police Station Tundla, District
Firozabad, is refused.

28. The present 482 application
lacks
merit
and
is,
accordingly,
dismissed.
----------
1 All. Anmol Singh Vs. State of U.P. & Anr.
1017
(2021)01ILR A1017
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.01.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Application u/s 482 No. 13804 of 2020

Anmol Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Hari Prakash Singh

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Application u/s 482 -
Power and Jurisdiction of Magistrate while
deciding application u/s 156(3) Cr.P.C. -
Code
of
Criminal
Procedure:
Section
156(3), 202(1), 190 - The Magistrate
empowered under section 190 Cr.P.C. may
order an investigation by police under
section 156(3) but he need not order any
such investigation if he proposes to take
cognizance of the offence. Once he takes
cognizance he has to follow the procedure
envisaged in Chapter XV of the code. (Para 6, 8)

It is true that every application under Section
156(3) Cr.P.C. disclosing commission of a
cognizable offence may not be directed for
investigation by police and the Magistrate has
jurisdiction to treat the same as a complaint
case but in exercise of such jurisdiction the
Magistrate has to keep in view various factors.
The exercise of jurisdiction is basically guided
by interest of justice, from case to case. (Para
14)

B. The magistrate should apply judicial mind
while exercising his powers u/s 156 (3)
Cr.P.C.