# Smt. Suman Revisionist v. State of U.P

- **Citation:** (2023) 4 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-05
- **Case number:** Criminal Revision No. 2608 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-suman-revisionist-v-state-of-u-p-50086
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 293, 311, 313 &
482 - India Penal Code, 1860 - Sections
323, 325, 504 & 506 - Criminal Revision -
revisionist challenged the order passed by the
trial court by which the application moved u/s
311 of Cr.P.C. by the informant requesting to
summoned the Doctor as witness who had
examined the injured person was rejected on
the ground that the injuries alleged to be
caused to the injured are said to be simple in
nature and it is not necessary that if the
investigator has not taken the St.ment u/s
161 Cr.P.C., a person cannot be summoned as
well as on the ground that the prosecution is
itself opposing the application on the ground
that an advocate can be appointed by the
informant to assist the prosecution, but they
cannot
act
as
prosecution
officer
-
maintainability of application - Held, it was
the duty of the Trial Court to summon the
witness of concern doctor suo-moto, - and -
the judge of a criminal court is not a silent
spectator - it is his duty to be vigilant and
conscious and if there is apprehension of
injustice during the court of trial - further, the
charge-sheet is not a borderline, which
cannot it crossed by the trial court, it is not a
Holy Bible, Quran or Gita or any other
mandatory enactment, which must be obeyed
in every event, if the learned trial court finds
that the injured were medically examined by a
particular doctor and he has prepared the
injury report, it was the duty of court to
summon him instead of fact that his St.ment
was not recorded by the I.O. and he was not
arrayed in the list of witnesses of chargesheet - Hence, any person and any such
person can be summoned as witness, which
shows that there is not limit in exercising the
discretion of the court in any way - Revision is
allowed and impugned order is quashed.
(Para - 12, 13, 16, 18, 22, 32)

Criminal Revision allowed. (E-11)

List of Cases cited:

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The revision is finally disposed of.
----------
(2023) 4 ILRA 164
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 2608 of 2022

Smt. Suman ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Pankaj Kumar Shukla

Counsel for the Opposite Party:
G.A., Sri Devesh Kumar Sharma

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 293, 311, 313 &
482 - India Penal Code, 1860 - Sections
323, 325, 504 & 506 - Criminal Revision -
revisionist challenged the order passed by the
trial court by which the application moved u/s
311 of Cr.P.C. by the informant requesting to
summoned the Doctor as witness who had
examined the injured person was rejected on
the ground that the injuries alleged to be
caused to the injured are said to be simple in
nature and it is not necessary that if the
investigator has not taken the St.ment u/s
161 Cr.P.C., a person cannot be summoned as
well as on the ground that the prosecution is
itself opposing the application on the ground
that an advocate can be appointed by the
informant to assist the prosecution, but they
cannot
act
as
prosecution
officer
-
maintainability of application - Held, it was
the duty of the Trial Court to summon the
witness of concern doctor suo-moto, - and -
the judge of a criminal court is not a silent
spectator - it is his duty to be vigilant and
conscious and if there is apprehension of
injustice during the court of trial - further, the
charge-sheet is not a borderline, which
cannot it crossed by the trial court, it is not a
Holy Bible, Quran or Gita or any other
mandatory enactment, which must be obeyed
in every event, if the learned trial court finds
that the injured were medically examined by a
particular doctor and he has prepared the
injury report, it was the duty of court to
summon him instead of fact that his St.ment
was not recorded by the I.O. and he was not
arrayed in the list of witnesses of chargesheet - Hence, any person and any such
person can be summoned as witness, which
shows that there is not limit in exercising the
discretion of the court in any way - Revision is
allowed and impugned order is quashed.
(Para - 12, 13, 16, 18, 22, 32)

Criminal Revision allowed. (E-11)

List of Cases cited:

1. Rekha Murakka Vs St. of W. B .& ors., J.T
2019 (11) S.C 291

2. Mohan Lal Shamji Soni Vs U.O.I., A.I.R 1991
S.C. 1346

3. R.B. Mithani Vs St. of Mah., A.I.R 1971 S.C
1630

4. Rama Paswan Vs St. of Jharkhand, 2007
Cr.L.J 2750

5. Raku Manjal Vs St. of Jharkhand, 2006 Cr.L.J
293

6. Raj Deo Sharma Vs St. of Bihar, AIR 1999 SC
3524

7. Shailendra Kumar Vs St. of Bihar, AIR 2002 SC
270

8. Govind Ram Vs St. of U.P., 1999 Cr.L.J 1955
(Allahabad)

9. Ramasami Vs Sriniwasan, 1987 (3) Crimes 89
Madras.

10. Bhima Mudali and Ors. Vs St. of Orissa &
anr., 1996 Cr.L.J. 1899 Orrisa

11. Chemo Steel Limited Vs St. of Andhra
Pradesh 2005 Cr.L.J 716
4 All. Smt. Suman Vs. State of U.P.
165
12. Om Prakash Vs St. of Raj. 2003 Cr.L.J 4704

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This criminal revision has been
instituted by the revisionist to set aside the
order dated 31st May, 2022 passed by
A.S.J-VI, Mathura in S.T. No. 433 of 2012
(Smt. Suman Vs. Krishna Murari & Ors.)
under Sections 323, 325, 504, 506 I.P.C.
Police Station Vrindaban, District Mathura,
by which the Trial Court has rejected the
application 136-B by the informant under
Section 311 Cr.P.C.

2. In brief facts of the case are that the
aforementioned Sessions Trial is pending in
the Court of A.S.J-VI, Mathura, in which
the informant moved an application 136-B
that injured Rajan Lal was examined on
03rd
July, 2009
in Swarna
Jayanti
Community Hospital. Medical report 4A/17 is on record, he was examined by Dr.
Ajai
Gopal,
during
the
medical
examination
Mild
Subarachnoid
Hemorrhage was found on the head and he
was
carried
out
in
unconscious
position/stage to the hospital therefore the
statement of concerned doctor is necessary.
Hence, Dr. Ajai Gopal be summoned as
witness. The concerned I.O. has not arrayed
him as witness, therefore Dr. Ajai Gopal be
summoned under Section 311 Cr.P.C.

3. Learned counsel for the accused
had vehemently opposed the application
and had stated that this file is under Section
313 Cr.P.C on 01.01.2014 and is being
delayed intentionally. The injury of Rajan
Lal is simple in nature and the statement of
Dr. Ajai Gopal has not been been recorded
by the concerned I.O. under Section 161
Cr.P.C.

4. By the impugned order, the learned
trial court has rejected the application on
the ground that the injuries alleged to be
caused to the injured are said to be simple
in nature. The learned A.D.G.C has
objected the summoning of the said witness
in such a situation when the statement of
the victim has been made and the trial
relates to Sections 323, 325, 504, 506 I.P.C,
therefore calling or not calling of the
aforesaid doctor would have not special
effect on the prosecution. It is also clarified
that this sessions trial is connected with
another cross case, which is under the
action plan laid down by the Hon'ble High
Court,
which
has
to
be
decided
expeditiously, therefore, the application is
not maintainable and is liable to be
rejected.

5. It has also been concluded by the
trial court that the application under
Section 311 Cr.P.C has been opposed by
the
learned
ADGC
(Criminal)
what
evidence the prosecution wants to present
in the court, it is the responsibility of the
prosecution. It is not necessary that if the
investigator has not taken the statement
under Section 161 Cr.P.C, a person
cannot be summoned but in this case, the
prosecution itself is opposing it. The
advocate appointed by the informant can
assist the prosecution, but they can not
act as prosecution officer. The learned
trial court has referred the judgment
Rekha Murakka Vs. State of West
Bengal & Ors. J.T 2019 (11) S.C 291, in
which it has been held that the learned
counsel for the victim//informant plays
only a secondary role in advancing the
prosecution case.

6. Being aggrieved the revisionist has
filed the present revision.
166 INDIAN LAW REPORTS ALLAHABAD SERIES

7. In the application, the applicant has
taken ground that the impugned order has
been passed without application of mind by
wrongly interpreting the judgement of
Rekha Murakka (supra) and thus rejected
the legal and genuine claim of the
revisionist.

8. Dr. Ajai Gopal is the sole witness,
who has medically examined the injured
Rajan Lal on 03rd July, 2009 in Swarna
Jayanti Community Hospital and has given
opinion in which he has contended that the
injury cannot be seen due to plaster and
referred the injured to District Hospital,
Mathura for x-ray about the opinion
regarding injury no. 1. In this incident,
Rajan and Sunder Lal, two persons had
sustained grievous injury and both were
examined by Dr. Ajai Gopal, therefore his
deposition is more important for conclusion
of the case.

9. Since, the learned trial court is also
adjudicating the cross version, therefore, it is
duty of the trial court to scrutinize the injuries
thoroughly, but the trial court adopting the
process in harried manner only on the ground
that it is cross case and referring the High
Court action plan, rejected the claim of the
revisionist in violation of statutory provisions
under the garb of action plan. The impugned
order is wholly illegal and arbitrary and
against the principles of natural justice, hence
the revision be allowed and the order dated
31st may, 2022 be set aside.

10. Heard Sri Pankaj Kumar Shukla,
learned counsel for the revisionist, Sri Pankaj
Kumar Tripathi, learned A.G.A for the State
and perused the material available on record.

11. The injury reports have been filed
through annexure no. 2, which are said to
be prepared after medical examination by
Dr. Ajai Gopal. As per the injury report the
victim Rajan Lal has sustained three
injuries, he could not see injury no. 1
properly as there was plaster of paris
thereon, hence he referred the patient to
District Hospital, Mathura for expert
opinion. He found that injury no. 2 is
simple in nature caused by hard and blunt
object. Injury no. 3 was the stitched
wound. At page no. 28 there is a copy of xray report form. At page 30 there is
photocopy of the injury report of Sundar
Lal, he has sustained two injuries, out of
which injury no. 1 was kept under
observation and it was referred for x-ray
and expert opinion. At page 30, there is xray form regarding the injured Sundar Lal.

12. This court is of the view that it
was the duty of I.O. to record the statement
of the concerned Doctor and array his name
in the column of witness in the chargesheet. If it has not been done, it is not a
fault of the informant/revisionist, if Dr.
Ajay Gopal is not examined, the injury
reports prepared by him would not be
proved and would not be admissible in
evidence. If no objection has been raised on
the said injury report, it may be exhibited
but it is not liable to be exhibited under
Section 293 Cr.P.C. Therefore, it was the
duty of the trial court to summon the
witness Dr. Ajay Gopal suo-moto. He was
also under the obligation to record a finding
that it is fault on the part of I.O that he did
not record the statement of Dr. Ajay Gopal
and has not copied the injury reports in
case diary.

13. The judge of a criminal court is
not a silent spectator, it is his duty to be
vigilant and conscious and if there is
apprehension of injustice during the course
of trial, it is his duty to be vigilant. The
charge-sheet is not the borderline, which
4 All. Smt. Suman Vs. State of U.P.
167
cannot it cross by the trail court, it is not a
Holy Bible, Quran or Gita or any other
mandatory enactment, which must be
obeyed in every event, if the learned trial
court finds that the injured were medically
examined by Dr. Ajay Gopal and he has
prepared the injury report, it was the duty
of the trial court to summon him instead of
fact that his statement was not recorded by
the I.O and he was not arrayed in the list of
witnesses in charge-sheet.

14. Section 311 Cr.P.C provided wide
power to the court to summon the material
witness, which is as under:-

"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. The second part of Section 482
Cr.P.C is mandatory and it casts duty on
the court to summon, examine or call or reexamine any such persons, if his evidence
appears to be essential to the just decision
of the case.

16. This court is of the view that the
evidence of Dr. Ajay Gopal in the aforesaid
circumstances is very much essential for the
just decision of the case otherwise the
prosecution would be deprived of its valuable
right. There might be direction under the
action plan to decide the case as early as
possible, but solely on this reason either of
the parties cannot be deprived of his valuable
legal right and a trial cannot be finished in
illegal and hurried manner. If Dr. Ajay
Gopal is not examined certainly the injury
reports would be of no avail and inadmissible
in evidence.

17. It has not been said by the learned
trial court that the accused persons have
admitted the genuineness of the injury reports
or they have dispensed with the formed proof
of the injury reports, it appears that till now
the injury reports has not been proved in due
course of law, therefore, it was the bounden
duty of ADGC (Crl.) and the concerned court
not to oppose such necessary application, if
was duty of A.D.G.C (Crl.) to move an
application to summon Dr. Ajay Gopal as a
witness and if this duty was omitted by him,
it was the duty of the trial court to summon
the concerned doctor for proving the medical
report.

18. In Mohan Lal Shamji Soni Vs.
Union of India A.I.R 1991 S.C. 1346, it is
held that Section 311 is enacted which
enables the Court to find out the truth and
render a justice decision where-under any
court by exercise of it's discretionary
authority at any stage of inquiry, trial or other
proceedings can summon any person as
witness or examine any person in attendance
though not summoned as a witness or recall
or re-examine any person already examined,
who are able to through light upon the matter
in dispute .

19. Opportunity to rebuttal would be
provided to the other party.

20. In this case on the basis of above
decision
and
provision
following
ingredience are found which are as under:-

1. To summon any person as a
witness, Or
168 INDIAN LAW REPORTS ALLAHABAD SERIES

2. To examine any person in
attendance, though not summoned as
witness or to re-call, re-examine any
person, who already examined.

21. The second part which is
mandatory imposes obligation on the
Court: -

to summon and examine or to
recall, re-examine any such person, if his
evidence appears to be essential to the just
decision of the case. This Section is in two
parts and wide discretion has been given to
the Court to exercise it's jurisdiction at any
stage or any inquiry or trial in the
proceedings.

22. Any person and any such person
can be summoned as witness, which shows
that there is not limit in exercising the
discretion of the court in any way.

23. In R.B. Mithani Vs. State of
Maharashtra A.I.R 1971 S.C - 1630, it is
held that additional evidence must be
necessary, not because it would be ample to
pronounce judgment, but because there
would be failure of justice without it. The
power must be exercised sparingly and
only in suitable case. Once such action is
justified there is no restriction in the kind
of evidence, which must be received. It
may be formal or substantial.

24. In Rama Paswan Vs. State of
Jharkhand 2007 Cr.L.J 2750, the Apex
Court held that the determine factor is
whether summoning or re-calling of the
witness 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 improper of the power of the Court, to
summon a witness under the Section
merely because the evidence supports the
case of the prosecution and not that of the
accused. The Section is a general Section
which apply to all proceedings, inquiries
and trials under the court and empowers the
Magistrate to issue summon to any
witnesses at any stage of such proceedings,
trial or inquiry.

25. In Raku Manjal Vs. State of
Jharkhand 2006 Cr.L.J 293, the case was
pending for the last 25 years and the
prosecution evidence had already been
closed. The I.O. and the Doctor, who had
performed postmortem examination, were
summoned under Section 311Cr.P.C. as
their examination was found necessary for
the justice decision of the case.

26. In Raj Deo Sharma Vs. State of
Bihar, A.I.R 1999 Supreme Court 3524, it
is held that once it is found that the
evidence is essential for the just decision of
the case, the witness can be recalled at any
time
before
pronouncement
of
the
judgment, the time factor would not come
for the way. It is not a case where if Dr.
Ajay Gopal is summoned it would be an
attempt to fill up the lacuna in the
prosecution case as the injury report has
been prepared by him. It would also not
cause prejudice to the accused as he would
have an opportunity to cross examine the
witness.

27. In Shailendra Kumar Vs. State of
Bihar, A.I.R 2002 (Supreme Court) 270, it
is held that if there is any negligence,
latches or mistake by not examining
material witness, the Courts function to
render just decision by examining such
witness at any stage is not, in any way
impaired.

28. In Govind Ram Vs. State of U.P.
1999 Cr.L.J 1955 (Allahabad), it is held
4 All. Uma Shankar & Ors. Vs. State of U.P. & Ors.
169
that the court had a duty to see that the
witnesses are examined for just decision of
the case and the court has to call and
examine a witness as court witness even if
the prosecution does not produce him
would be fine that the evidence of the
witnesses had an important bearing on the
case.

29. In Ramasami Vs. Sriniwasan
1987 (3) Crimes 89 Madras, it is held that
the criminal court is not just umpire to deal
only the material brought by the parties
before it. The court has to play an active
role in the administration of criminal
jurisprudence. Though, it is not normal
duty of the court to collect evidence, in
cases where justice requires, the Court has
power to further inquire into the matter in
order to ascertain the truth.

30. In Bhima Mudali and Ors. Vs.
State of Orissa & Anr.1996 Cr.L.J. 1899
Orrisa, In Chemo Steel Limited Vs. State
of Andhra Pradesh 2005 Cr.L.J 716 and in
Om Prakash Vs. State of Rajasthan 2003
Cr.L.J 4704, it is held that a person not
examined under Section 161 Cr.P.C. can
also be summoned as witness under Section
311.

31. In view of the above, this Court is
of the considered view that the impugned
order is perverse and bad in law and is
liable to be quashed and the revision is
liable to be allowed.

O R D E R

32. This criminal revision is allowed
and the impugned order dated dated
31.05.2022, passed by Additional District
Judge-VI, Mathura in S.T. No. 433 of 2012
- (Smt. Suman Vs. Krishna Murari & Ors),
under Sections 323, 325, 504 and 506
I.P.C, Police Station Vrindavan, District
Mathura, is hereby quashed.

33. The learned court is directed to
summon Dr. Ajay Gopal, to prove the
medical reports.

34. This order be sent to the trial court
ASJ-VI, Mathura, forthwith for immediate
and strict compliance.
----------
(2023) 4 ILRA 169
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2023

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Revision No. 3212 of 2009

Uma Shankar & Ors. ...Revisionists
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionists:
Sri D.K. Singh, Sri A.K. Rai, Sri Bimal
Prasad

Counsel for the Opposite Parties:
G.A., Sri A.K. Srivastava

Criminal Law - Criminal Procedure Code,
1973 - Sections 145 & 146 - Criminal
Revision - Challenging the order passed by
S.D.M. in a proceeding u/s 145 of Cr.P.C. by
which Application of revisionist, to drop the
proceedings, was rejected - court finds that, title
of the suit property is already decided in favour
of the revisionist and a Civil Suit is also pending
between parties an interim injunction is also
passed in favour of the revisionist - held, in view
of legal position highlighted by the full bench in
a case of 'Ganga Bux Singh' the proceeding u/s
145
Cr.P.C.
are materially
different
from
proceedings in proper suit and as such when the
proceedings in Civil Suit is pending regarding a