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

- **Citation:** (2020) 2 ILRA 1573
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-02
- **Case number:** Application U/S 482 No. 44125 of 2019
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sonu-v-state-of-u-p-anr-45543
- **Pages:** 6

## Headnote

A. Criminal law - Code of Criminal
Procedure, 1973- Section 311 - Very object
of Section 311 is to bring on record evidence
not only from the point of view of accused and
prosecution but also from the point of view of
the orderly society .The court enjoys vast
power to summon any person as a witness or
recall and re-examine a witness provided same
is essentially required for just decision of the
case. Moreover, such exercise of power can be
at any stage of inquiry, trial or proceedings
under the Code, meaning thereby, applicant
can file an application at any time before
conclusion of trial.
The power of the Court to summon or reexamine any witness, under the exercise of its
powers u/s 311 Cr.Pc , is unfettered and can be
exercised at any stage of the trial in the
interest of justice.

B. Criminal Law - Code of Criminal Procedure,
1973- Section 311- Delay in re-examination of
Prosecution witness - Grant of fair and proper
opportunities to the persons concerned, must be
ensured being a constitutional goal, as well as a
human right. If substantial justice and technicalities
are pitted against each other, the cause of
substantial justice should not be defeated on
technicalities. No procedure in a Court of law should
be allowed to defeat the cause of substantial justice
on some technicalities.

Even though the trial court has allowed the
application for re-examination of a witness u/s 311
of the Cr.Pc after 19 years and after the evidence of
the prosecution has ended, the order of the trial
court is just and proper since delay being a
technicality, cannot defeat the ends of substantial
justice. ( Para 7, 11, 13)

Criminal Application rejected.

Case Law discussed:-

## Text

2 All. Sonu Vs. State of U.P. & Anr.
1573
under Section 313 Cr.P.C., the learned
trial Court will pass the judgment.

17. The learned trial Court will not
act in haste in deciding this session trial
and the trial Court will follow and adhere
to the mandatory provisions of law.

18. With the above observations,
both the applications are finally disposed
of.
----------
(2020)02ILR A1573

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.01.2020

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 44125 of 2019

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

Counsel for the Applicant:
Sri Bhaskar Bhadra

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

A. Criminal law - Code of Criminal
Procedure, 1973- Section 311 - Very object
of Section 311 is to bring on record evidence
not only from the point of view of accused and
prosecution but also from the point of view of
the orderly society .The court enjoys vast
power to summon any person as a witness or
recall and re-examine a witness provided same
is essentially required for just decision of the
case. Moreover, such exercise of power can be
at any stage of inquiry, trial or proceedings
under the Code, meaning thereby, applicant
can file an application at any time before
conclusion of trial.
The power of the Court to summon or reexamine any witness, under the exercise of its
powers u/s 311 Cr.Pc , is unfettered and can be
exercised at any stage of the trial in the
interest of justice.

B. Criminal Law - Code of Criminal Procedure,
1973- Section 311- Delay in re-examination of
Prosecution witness - Grant of fair and proper
opportunities to the persons concerned, must be
ensured being a constitutional goal, as well as a
human right. If substantial justice and technicalities
are pitted against each other, the cause of
substantial justice should not be defeated on
technicalities. No procedure in a Court of law should
be allowed to defeat the cause of substantial justice
on some technicalities.

Even though the trial court has allowed the
application for re-examination of a witness u/s 311
of the Cr.Pc after 19 years and after the evidence of
the prosecution has ended, the order of the trial
court is just and proper since delay being a
technicality, cannot defeat the ends of substantial
justice. ( Para 7, 11, 13)

Criminal Application rejected.

Case Law discussed:-

1. Raghunath Prasad Vs. Filed u/s 311 Cr.Pc St.
of Raj.,1997 LawSuit (Raj) 12 ( Distinguished)

2. Raja Ram Prasad Yadav Vs. St. of Bih. &
anr., (2013)14 SCC 461

3. Mannan SK & ors. Vs. St. of W.B & anr., AIR
(2014) SC 2950

4. Jai Jai Ram Manohar Lal Vs. National
Building Material Supply; AIR (1969) SC 1267

5. Ghanshyam Dass & ors. Vs. Dominion of
India & ors.; (1984) 3 SCC 46

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Bhaskar Bhadra,
learned counsel for the applicant and Mr.
1574 INDIAN LAW REPORTS ALLAHABAD SERIES
Prashant Kumar, learned A.G.A. for the
State.

2.

The
present
482
Cr.P.C.
application has been filed to quash the
order dated 30th October, 2019 passed by
the Additional Sessions Judge, Court No.
15, Bareilly in Sessions Trial No. 727 of
2001 (State Vs. Nisar Ahmad & Others)
arising out of Case Crime No. 538 of
2000, under Sections-396 and 120-B
I.P.C., Police Station-Bahedi, DistrictBareilly, whereby the application made by
opposite party no.2 under Section 311
Cr.P.C. for re-examination of Prosecution
Witness No.2, namely, Ashok Kumar has
been allowed.

3. Learned counsel for the applicant
submits that the court below, without
considering the objection and evidences
available on record has passed the
impugned order, allowing the application
of opposite party no.2 under Section 311
Cr.P.C. It is further submitted that in the
trial of the aforesaid case, the evidences
between the parties have already been
ended and the trial is at the final stage,
therefore, the application filed by the
prosecution for re-examination of P.W.-2,
namely, Ashok Kumar after 19 years delay,
is not maintainable. It is further submitted
that P.W. -2 Ashok Kumar has already
been examined and cross-examined on
19th September, 2006 and when the
prosecution thought that the prosecution
would not succeed in the instant session
trial then with the collusion of said
witness, is trying to re-examine him, in an
effort to succeed,, which is not permissible
under law in any manner. He, therefore,
submits that the order impugned, passed
by the Additional Sessions Judge, is
absolutely illegal, arbitrary, contrary to the
evidence on record and is also beyond
time, hence the same is liable to be
quashed. In support of his plea, learned
counsel for the applicant has placed
reliance upon a judgment of the Rajasthan
High Court (Jaipur Bench) in the case of
Raghunath Prasad Vs. State of Rarjasthan,
reported in 1997 LawSuit (Raj) 12.

4. Per contra, Mr. Prashant Kumar,
learned A.G.A. for the State has opposed
the submission made by the learned
counsel for the applicant by contending
that the order impugned passed by the
court below is legal and valid. The court
below has recorded pure finding of fact
while allowing the application filed by
opposite party no.2 under Section 311
Cr.P.C. for re-examination of P.W.-2,
namely, Ashok Kumar for identifying
Exhibit-Ka-3. The court below has not
committed any error in passing the
impugned order, therefore, do not call for
any interference by this Court. Hence, he
submits that the present application is
liable to be rejected.

5. I have considered the submissions
made by the learned counsel for the parties
and have gone through the records of the
present application.

6. Before ascertaining correctness of
aforesaid submissions having been made
by the learned counsel for the parties, visa-vis, impugned order passed by the
learned court below, this Court deems it
proper to take note of the provisions of law
contained under Section 311 CrPC:

"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
2 All. Sonu Vs. State of U.P. & Anr.
1575
not summoned as a witness, or recall and
re- examine any person already examined;
and the Court shall summon and examine
or recall and reexamine any such person if
his evidence appears to it to be essential to
the just decision of the case."

7. Careful perusal of aforesaid
provision clearly suggests that court
enjoys vast power to summon any person
as a witness or recall and re-examine a
witness provided same is essentially
required for just decision of the case.
Moreover, such exercise of power can be
at any stage of inquiry, trial or proceedings
under
the
Code,
meaning
thereby,
applicant can file an application at any
time before conclusion of trial. Very object
of Section 311 is to bring on record
evidence not only from the point of view
of accused and prosecution but also from
the point of view of the orderly society.

8. Otherwise also, it is well
established
principle
of
criminal
jurisprudence that discovery, vindication
and establishment of truth are main
purposes of underlying object of courts of
justice. It is also well settled that wider the
power, greater the responsibility upon
court, which exercises such power and
exercise
of
such
power
cannot
be
untrammeled and arbitrary, rather same
must be guided by object of arriving at a
just decision of case. Close scrutiny of
aforesaid provision of law further suggests
that Section 311 has two parts; first part
reserves a right to the parties to move an
appropriate application for re-examination
of a witness at any stage; but definitely the
second part is mandatory that casts a duty
upon court to re-examine or recall or
summon a witness at any stage if his/her
evidence appears to be essential for just
decision of case because, definitely the
underlying object of aforesaid provision of
law is to ensure that there is no failure of
justice on account of mistake on the part of
either of parties in bringing valuable piece
of evidence or leaving an ambiguity in the
statements of witnesses examined from
either side.

9. The Apex Court in Raja Ram
Prasad Yadav vs. State of Bihar and
another, reported in (2013)14 SCC 461,
has held that power under Section 311
Cr.P.C. to summon any person or witness
or examine any person already examined
can be exercised at any stage provided the
same is required for just decision of the
case. It may be relevant to take note of the
following paras of the judgment:-

"14. A conspicuous reading of
Section 311 Cr.P.C. would show that
widest of the powers have been invested
with the Courts when it comes to the
question of summoning a witness or to
recall or re-examine any witness already
examined. A reading of the provision
shows that the expression "any" has been
used as a pre-fix to "court", "inquiry",
"trial", "other proceeding", "person as a
witness", "person in attendance though not
summoned as a witness", and "person
already examined". By using the said
expression "any" as a pre-fix to the
various expressions mentioned above, it is
ultimately stated that all that was required
to be satisfied by the Court was only in
relation to such evidence that appears to
the Court to be essential for the just
decision of the case. Section 138 of the
Evidence Act, prescribed the order of
examination of a witness in the Court.
Order of re-examination is also prescribed
calling for such a witness so desired for
such re-examination. Therefore, a reading
of Section 311 Cr.P.C. and Section 138
1576 INDIAN LAW REPORTS ALLAHABAD SERIES
Evidence Act, insofar as it comes to the
question of a criminal trial, the order
of re-examination at the desire of any
person under Section 138, will have to
necessarily be in consonance with the
prescription contained in Section 311
Cr.P.C. It is, therefore, imperative that
the invocation of Section 311 Cr.P.C.
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 provision, namely, for
achieving a just decision of the case as
noted by us earlier. The power vested
under the said provision is made
available to any Court at any stage in
any
inquiry
or
trial
or
other
proceeding initiated under the Code
for the purpose of summoning any
person as a witness or for examining
any person in attendance, even though
not summoned as witness or to recall
or re-examine any person already
examined. Insofar as recalling and reexamination of any person already
examined, the Court must necessarily
consider and ensure that such recall
and re-examination of any person,
appears in the view of the Court to be
essential for the just decision of the
case.
Therefore,
the
paramount
requirement is just decision and for
that purpose the essentiality of a
person to be recalled and re-examined
has to be ascertained. To put it
differently, while such a widest power
is invested with the Court, it is
needless to state that exercise of such
power should be made judicially and
also with extreme care and caution."

10. In this context, I also wish to make a
reference to the judgment of the Apex Court in
Mannan SK and others vs. State of West
Bengal and another reported in AIR 2014 SC
2950, wherein the the Apex Court Court has
held as under:-

"10. The aim of every court is to
discover truth. Section 311 of the Code is one
of many such provisions of the Code which
strengthen the arms of a court in its effort to
ferret out the truth by procedure sanctioned by
law. It is couched in very wide terms. It
empowers the court at any stage of any
inquiry, trial or other proceedings under the
Code to summon any person as a witness or
examine any person in attendance, though not
summoned as witness or recall and re-examine
already examined witness. The second part of
the Section uses the word 'shall'. It says that the
court shall summon and examine or recall or
re-examine any such person if his evidence
appears to it to be essential to the just decision
of the case. The words 'essential to the just
decision of the case' are the key words. The
court must form an opinion that for the just
decision of the case recall or reexamination of
the witness is necessary. Since the power is
wide it's exercise has to be done with
circumspection. It is trite that wider the power
greater is the responsibility on the courts
which exercise it. The exercise of this power
cannot be untrammeled and arbitrary but must
be only guided by the object of arriving at a
just decision of the case. It should not cause
prejudice to the accused. It should not permit
the prosecution to fill-up the lacuna. Whether
recall of a witness is for filling-up of a lacuna
or it is for just decision of a case depends on
facts and circumstances of each case. In all
cases it is likely to be argued that the
prosecution is trying to fill-up a lacuna
because the line of demarcation is thin. It is for
the court to consider all the circumstances and
decide whether the prayer for recall is
genuine."

11. Aforesaid exposition of law
clearly suggests that a fair trial is main
2 All. Sonu Vs. State of U.P. & Anr.
1577
object of criminal jurisprudence and it is
duty of court to ensure such fairness is not
hampered or threatened in any manner. It
has been further held in the aforesaid
judgments that fair trial entails interests of
accused, victim and society and therefore,
grant of fair and proper opportunities to
the persons concerned, must be ensured
being a constitutional goal, as well as a
human right. The Apex Court has
categorically
held
in
the
aforesaid
judgment that adducing evidence in
support of the defence is a valuable right
and denial of such right would amount to
denial of a fair trial.

12. Further, the Apex Court in
Raja Ram Prasad Yadav vs. State of
Bihar
and
another
reported
in
(2013)14 SCC 461, while culling out
certain principles required to be borne
in
mind
by
the
courts
while
considering applications under Section
311 has held that exercise of widest
discretionary powers under Section 311
should ensure that judgment should not
be rendered on inchoate, inconclusive
and speculative presentation of facts.
Hon'ble Apex Court has further held
that if evidence of any witness appears
to be essential for the just decision of
the case, it is the duty of the court to
summon and examine or recall and reexamine any such person because very
object of exercising power under
Section 311 is to find out truth and
render
a
just
decision.
Most
importantly, in the judgment referred to
herein above, the Apex Court has held
that court should bear in mind that no
party in trial can be foreclosed from
correcting errors and that if proper
evidence was not adduced or a relevant
material was not brought on record due
to any inadvertence, the Court should
be magnanimous in permitting such
mistakes to be rectified.

13. There is no dispute that P.W.-2
has already been examined and crossexamined but perusal of the application
made by opposite party no.2 under Section
311 Cr.P.C. as well as the order impugned
indicate that P.W. -8, namely, Naseer
Ahmad had already proved Exhibit Ka-3
but had not identified the accused persons
and the informant Kamal Kumar and P.W.-
2 Ashok Kumar had earlier identified the
accused persons but since informant
Kamal Kumar had expired, re-examination
of P.W.-2 Ashok Kumar is required to
identify Exhibit-Ka-3 as he was the
witness of the same. From the finding
recorded by the court below under the
order impugned, this Court finds no
illegality
or
infirmity
in
the
order
impugned. The court below while referring
to the provisions of Section 311 Cr.P.C.
and the law laid by the Apex Court, has
rightly allowed the application made by
opposite party no.2 under Section 311
Cr.P.C. The delay in re-examination of
P.W.-2 pleaded by the learned counsel for
the applicant is a so technical plea, which
may hamper the interest of substantial
justice. It is settled law that all Courts of
law are established for furtherance of
interest of substantial justice and not to
obstruct the same on technicalities. In Jai
Jai Ram Manohar Lal vs. National
Building Material Supply; AIR 1969 SC
1267, the Apex Court has held that if
substantial justice and technicalities are
pitted against each other, the cause of
substantial justice should not be defeated
on technicalities. No procedure in a Court
of law should be allowed to defeat the
cause of substantial justice on some
technicalities.
The
Apex
Court
has
reiterated the same in the case of
1578 INDIAN LAW REPORTS ALLAHABAD SERIES
Ghanshyam Dass & Ors. vs. Dominion
of India & Ors; reported in (1984) 3 SCC
46. The judgment of the Rajasthan High
Court relied upon by the learned counsel
for the applicant in the case of Raghunath
Prasad (Supra) is clearly distinguishable in
the facts of the present case.

14. In view of the aforesaid, I find no
good reason to interfere with the order
impugned. The present application devoid
of merits and is accordingly rejected.
----------
(2020)02ILR A1578

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

Application U/S 482 No. 44706 of 2019

Rahul Kushwaha ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ajay Singh, Sri Yogendra Singh

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

A. Criminal law - Code Of Criminal
Procedure, 1973- Section 340/ 344- In
order to enable the court to form an infallible
opinion that the witness who has deposed
before the court are speaking false and has
given false statement / evidence in their
testimony and in order to decide proposed
action against the witnesses, it is incumbent on
the court to wait for completion of entire
evidence and final arguments in the case
because the opinion to be formed must be the
outcome of appreciation of entire evidence
recorded by it. Any haste shown by the court in
the course of trial and any hurried opinion
formed in the midst of the trial will result in
premature consideration of the matter disabling
the court from clearly and precisely assessing
the truth or reliability of the statement of the
witness in its proper perspective.

Proceedings u/s 344 Cr.Pc can be initiated only
at the time of delivery of the judgement and
the said proceedings cannot be drawn during
the pendency of the trial.

B. Criminal law - Code Of Criminal
Procedure, 1973 - Section 482- Section
482 (3)- Supervisory Jurisdiction of the High
Court -The learned Trial judge committed an
illegality in registering a miscellaneous case in
the exercise of powers under section 340 of the
Cr.Pc during the pendency of the trial and
therefore
the
prayer
for
expediting
the
proceedings of the case u/s 340 Cr.Pc is
misconceived hence entire proceedings of the
Misc. Case u/s 340 Cr.Pc quashed.

Criminal Application rejected.
( Para 7, 11, 12)

(Delivered by Hon'ble Rajul Bhargava, J.)

1. Heard Sri Yogendra Singh holding
brief of Sri Ajay Singh, learned counsel for
the applicant and Sri Pankaj Saxena,
learned A.G.A. for the State.

2. The present application u/s 482
Cr.P.C. has been filed by the applicant for
quashing the entire proceeding of Criminal
Case no. 73 of 2017 (State vs. Rahul
Kushwaha) u/s 354-A, 376, 452, 506 IPC
and u/s 3,4,7,8 of POCSO Act, 2012, Case
Crime no. 315 of 2017, P.S. Kotwali
Jalaun, District Jalaun pending in the court
of Additional District & Sessions Court-II,
Jalaun at Orai.

3. Learned counsel for the applicant
has argued that the opposite party no. 2
has lodged totally false and fictitious case
of commission of rape against the
applicant with his daughter and infact no