Petitioner seeks a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a division bench judges Hon’ble Dr Yogendra Kumar Srivastava, J in the matter Manish vs. State of U.P. and others – [ APPLICATION U/S 482 No. – 23428 of 2021] dealt with an issue mentioned above.
In this case, the learned counsel for the petitioner submits that’s the Heard Sri Sanjay Mishra, learned counsel for the applicant and Ms Sushma Soni, learned Additional Government Advocate appearing for the State-respondents. The present application under section 482 Cr.P.C. has been filed seeking to quash the order dated 21.09.2021 passed by the Additional Sessions Judge/FTC Court No.2, Mainpuri in S.T. No. 393 of 2013 (State vs. Manish and another) arising out of Case Crime No. 407 of 2012, under Sections 452, 302, 364, 201, 34 IPC, P.S. Karhal, District Mainpuri, whereby the application under Section 311 Cr.P.C. moved by the applicant has been rejected.
While considering the application filed by the accused-applicant under Section 311 Cr.P.C. the learned trial court has taken notice of the fact that the case was at the stage of final arguments and the witness (PW-1) who was sought to be summoned in terms of the said application had already appeared and had been cross-examined at length by the counsel of the accused-applicant. The trial court on the basis of the aforestated facts has taken a view that in case the accused applicant wished to impeach the testimony of the PW-1 it would be open for him to do so during the course of final arguments and the application under Section 311 Cr.P.C. at this advanced stage of proceedings was only with a view to causing a delay in disposal of the case. The application under section 311 Cr.P.C. seeking recall of the 2 witnesses was accordingly rejected.
In U.T. of Dadra and Nagar Haveli v Fatehsinh Mohansinh Chauhan2, while considering the power of the court to summon material witnesses under Section 311 Cr.P.C., it was opined that the said power can be exercised only with the object of finding out the truth or obtaining proper proof of facts which may lead to a just and correct decision.
The court perused the facts and arguments presented, it was the opinion that – “ The power conferred has been held to be discretionary and is to enable the court to determine the truth after discovering all relevant facts and obtaining proper proof thereof to arrive at a just decision in the case. The power conferred under Section 311 is to be invoked by the court to meet the ends of justice, for strong and valid reasons and it is to be exercised with great caution and circumspection. The determinative factor in this regard would be whether the summoning or recall of the witness is in fact, essential to the just decision of the case keeping in view that fair trial – which entails the interests of the accused, the victim and of the society – is the main object of the criminal procedure and the court is to ensure that such fairness is not hampered or threatened in any manner. The aforementioned legal position has been discussed in detail in a recent decision of this court in Ajmer vs. the State of U.P.9. Learned counsel for the applicant has not disputed the fact that the trial is at the stage of final arguments. It is also not disputed that the PW-1 had duly appeared as a witness and was cross-examined by the counsel for the accused-applicant at length. Counsel for the applicant has not been able to dispute the aforestated legal position with regard to the exercise of the power of the court under Section 311 Cr.P.C. and has not been able to point out any material error or illegality in the exercise of the aforesaid discretion by the court below so as to warrant interference. 9 2021 (115) ACC 409 7 . Having regard to the aforesaid, this court is not inclined to exercise its inherent jurisdiction under Section 482 Cr.P.C. to interfere in the matter.
Judgement reviewed by – Sakshi Mishra