Allahabad High Court
Vishnu Pandey Bishnu Jee Pandey vs State Of U.P. And Another on 9 July, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:108611 Reserved on : 03.07.2025 Delivered on : 09.07.2025 Court No. - 80 Case :- APPLICATION U/S 482 No. - 37220 of 2024 Applicant :- Vishnu Pandey Bishnu Jee Pandey Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind Prabodh Dubey Counsel for Opposite Party :- Digambar Dwivedi,G.A. Hon'ble Rajeev Misra,J.
1. This application under Section 482 Cr.P.C. has been filed by accused-applicant Vishnu Pandey @ Bishnu Jee Pandey challenging the order dated 14.10.2024 passed by the Additional Sessions Judge, Court No.-1, Deoria, in Sessions Trial No. 272 of 2019 (State Vs. Vishnu Pandey), under Sections 302, 201 IPC, Police Station-Bankata, District-Deoria, whereby the application dated 30.03.2024 (Paper No. 48 Kha) under Section 311 Cr.P.C. filed by the prosecution was allowed and consequently, PW-2 Smt. Lilawati Devi and PW-3 Jagdeesh Pandey have been recalled for re-examination by the prosecution itself.
2. I have heard Mr. Arvind Prabodh Dubey, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Digambar Dwivedi, the learned counsel representing first informant/opposite party-2.
3. Perused the record.
4. Counsel for the parties agreed that present application be decided at the admission stage itself without formally admitting the same and without calling for a counter affidavit. In view of above and as provided in the Rules of Court, the present application is being disposed of finally at the admission stage itself.
5. It transpires from the record that in respect of an occurrence, which is alleged to have occurred on 04.06.2019, a delayed FIR dated 11.06.2019 was lodged by first informant/opposite party-2 Laxmi Devi and was registered as Case Crime No. 0084 of 2019 (State Vs. Vishnu Pandey), under Sections 302/201 IPC, Police Station-Bankata, District-Deoria. In the aforesaid FIR, applicant Vishnu Pandey has been nominated as solitary named accused.
6. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. On the basis of material collected by him, during course of investigation, he came to the conclusion that offence complained of against applicant is prima-facie established. He, therefore, opined to submit a charge sheet against accused/applicant. Accordingly, Investigating Officer submitted the charge sheet/police report dated 28.08.2014 in terms of Section 173(2) Cr.P.C., whereby applicant was charge sheeted under Sections 302/201 Cr.P.C.
7. Upon submission of aforementioned charge-sheet/police report dated 28.08.2019, cognizance was taken upon same by the Jurisdictional Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. However, as offence complained of is triable exclusively by the Court of Sessions, therefore, the Jurisdictional Magistrate after complying with the provisions of Section 207 Cr.P.C. i.e. supply of copies of documents relied upon by the prosecution to accused, committed the case to the Court of Sessions as per mandate of Section 209 Cr.P.C. Resultantly Sessions Trial No. 272 of 2019 (State Vs. Vishnu Pandey) under Sections 302, 201 I.P.C., Police Station-Bankata, District-Deoria came to be registered in the Court of Additional Sessions Judge, Court No.-1, Deoria.
8. The concerned Sessions Judge proceeded with the trial. He framed charges against charge-sheeted accused i.e. applicant in exercise of jurisdiction under Section 228 Cr.P.C. Applicant denied the charges so framed against him pleaded innocence and demanded trial. Accordingly, the trial procedure commenced.
9. Prosecution in discharge of its burden to bring home the charges so framed against accused, adduced the following witnesses. In view of the issue involved in present application, the same is tabulated herein under:-
PW-1 Smt. Laxmi Devi
The statement-in-chief of this witness commenced from 12.10.2021. It continued and was further recorded on 27.10.2021, 13.01.2022, 31.08.2022, 19.09.2022 and ultimately, the examination-in-chief concluded on 04.11.2022.
PW-2 Smt. Lilawati Devi
The statement-in-chief of this witness commenced on 23.01.2023. Thereafter, the same was further recorded on 04.03.2023 and ultimately, her examination-in-chief concluded on 16.03.2023
PW-3 Jagdish Pandey
The statment-in-chief of this witness commenced from 15.04.2023 and his examination-in-chief concluded on 15.04.2023.
PW-4 Janardan Yadav
The statement-in-chief of this witness commenced from 28.04.2023 and the examination-in-chief concluded on 28.04.2023.
PW-5 Ram Kumar Rawat
The statement-in-chief of this witness commenced on 10.05.2023 and the examination-in-chief concluded on 09.10.2023
PW-6 Dr. Arvind Kumar Arya
The statement-in-chief of PW-6 commenced on 06.02.2024 and the examination-in-chief concluded on 06.02.2024.
10. It will not be out of place to mention here that as per the charge sheet/police report dated 23.08.2019, as many as 19 prosecution witnesses have been nominated therein. Out of aforesaid 19 nominated witnesses, 4 witnesses are witnesses of fact, whereas the rest are formal witnesses.
11. Up to this stage, all the prosecution witnesses except the Investigating Officer have deposed before Court below (as per the objection filed by accused to the application under Section 311 Cr.P.C). It is at this stage that an application dated 30.03.2024 (Paper No. 40 Kha) under Section 311 Cr.P.C. was filed by the prosecution before Court below for recall of PW-2 Lilawati Devi and PW-3 Jagdish Pandey.
12. Aforesaid application was filed on the grounds that PW-2 Smt. Lilawati Devi and PW-3 Jagdish Pandey had fully supported the prosecution story in their statements under Section 161 Cr.P.C. Thereafter, in their statement-in-chief before Court below, nothing adverse to the prosecution was stated by them. However, in their examination-in-chief on behalf of accused, aforementioned witnesses have not only departed from their previous statement but have pleaded ignorance about the occurrence in question. On the above premise, it was thus contended on behalf of the prosecution that the deposition of aforementioned witnesses in their examination-in-chief is not only contrary to their previous statement but also highly unnatural. The examination-in-chief of aforementioned witnesses is like that of a hostile witness and against the general tendency. It was thus prayed by the prosecution that aforementioned witnesses be summoned for re-examination by the prosecution so that a just decision could be arrived at.
13. Aforementioned application dated 30.03.2024 filed by prosecution was opposed by the accused-applicant. He, accordingly, filed his objection dated 30.03.2024 to the same and was registered as Paper No. 52Kha.
14. According to accused/applicant, application under Section 311 Cr.P.C. filed by the prosecution is wholly illegal. It was further pleaded that in the present case, the prosecution witnesses are sought to be summoned by the prosecution itself. The application under Section 311 Cr.P.C. has been filed after one year from the date of when the prosecution witnesses of fact had been examined. Once the prosecution witnesses i.e. PW-2 and PW-3 did not support the prosecution story in their examination-in-chief then in all probability, they are hostile witnesses. All the prosecution witnesses of fact adduced by the prosecution are not eye witnesses of the occurrence. It is only when a new counsel was engaged by the first informant that he advised to file an application under Section 311 Cr.P.C. so as to overcome the weaknesses in the prosecution case. Neither anything substantial can be achieved by recalling the aforementioned prosecution witnesses for their re-examination on behalf of the prosecution nor their re-examination is essential to prevent a failure of justice. On the above conspectus, it was thus pleaded by the accused/applicant that the application under Section 311 Cr.P.C. filed by the prosecution is misconceived, malicious and therefore, the same is liable to be rejected.
15. Court below, thereafter, considered the aforementioned application. The grounds raised in support of aforementioned application were examined and evaluated in the light of the provisions contained in Section 311 Cr.P.C. as well as the objections raised on behalf of accused-applicant to the same. Having undertaken the aforesaid exercise, ultimately, Court below, vide order dated 14.10.2024 allowed the same. Resultantly, PW-2 and PW-3 have been recalled by Court below for re-examination on behalf of prosecution itself.
16. Perusal of the order impugned will go to show that the same has been allowed by Court below on the findings that the recall of PW-2 and PW-3 is necessary for coming to the correct position of the matter and a judicious adjudication. The Court further observed that the prosecution does not want to bring in fresh evidence, but only wants to re-examine the witnesses already adduced. Furthermore, as per the averments made in the application, it cannot be concluded that the prosecution wants to fill in the lacuna in evidence.
17. Thus feeling aggrieved by the order dated 14.10.2024 passed by court below i.e. the Additional Sessions Judge, Court No.-1, Deoria, accused/applicant has now approached this Court by means of present application under Section 482 Cr.P.C.
18. Mr. Arvind Prabodh Dubey, the learned counsel for applicant submits that the order impugned in present application is manifestly illegal and in excess of jurisdiction. As such, the same is liable to be quashed by this Court. According to the learned counsel for applicant, the prosecution wants to re-examine it’s own witness, which is unusual and unnatural. Once the prosecution witnesses of fact i.e. PW-2 and PW-3 have themselves not supported the prosecution story in their examination-in-chief then in all probability, Court below ought to have declared them hostile. However, for reasons best known to the prosecution, no request was made by the prosecution before Court below to declare them hostile. Furthermore, the questions proposed to be put to the witnesses sought to be recalled, have neither been mentioned in the application dated 30.03.2024 nor the relevance of the same has been detailed in the application. As such, aforementioned application was devoid of any bona-fide on the part of prosecution in filing the said application. In support of above, reliance was placed upon the judgment of Supreme Court in Raja Ram Prasad Yadav Vs. State of Bihar and another (2013) 14 SCC 461, wherein the Court has laid down the parameters,as per which, the bona-fide of an applicant in filing an application under Section 311 Cr.P.C. is to be judged. It was also contended by the learned counsel for applicant that when the bona-fide of the prosecution in filing the application dated 30.03.2024 is examined in the light of the parameters laid down by the Apex Court in aforementioned judgment, then no bona-fide on the part of prosecution in filing the said application can be gathered. As such, the order impugned cannot be sustained and therefore, liable to be quashed.
19. Reliance was also placed upon the following judgments of Supreme Court as well as this Court i.e. (1) State of Haryana Vs. Ram Mehar and Others, (2016) 8 SCC 762, (2) Application U/s 482 Cr.P.C. No. 25625 of 2018 (Firm/Ms. Nilophar Hides Vs. State of U.P. and Another) decided on 01.08.2018, (3) Swapan Kumar Chatterjee Vs. CBI, (2019) 14 SCC 328, (4) Application U/s 482 Cr.P.C. No. 25531 of 2022 (Rajendra Kumar Vs. Stat eof U.P.) decided on 12.09.2022 and (5) Special Leave to Appeal (Crl.) NO. 3910 of 2024 (Neha Begum and Others Vs. The State of Assam and Another) decided on 19.01.2024, wherein Court has denied the prayer for recall of witnesses. On the above premise, the learned counsel for applicant thus urged that the order impugned is liable to be quashed by this Court.
20. Per contra, the learned A.G.A. for State-opposite party-1 and the learned counsel representing first informant-opposite party-2 have vehemently opposed the present application. Learned A.G.A. has referred to the order impugned and with reference to the findings recorded therein as has also been noted herein above, it was submitted that the order impugned is perfectly just and legal. As such, no interference is warranted by this Court in present application.
21. Mr. Digambar Dwivedi, the learned counsel representing first informant/opposite party-2 on the other hand has also opposed the present application. He has adopted the arguments raised by the learned A.G.A. in opposition to this application. He has, however, relied upon paragraph 74 of the judgment of Supreme Court in Anees Vs. The State Govt. of NCT, 2024 SCC OnLine SC 757. For ready reference, paragraph 74 of the report is extracted herein below:-
“74. The judge is expected to actively participate in the trial, elicit necessary materials from the witnesses in the appropriate context which he feels necessary for reaching the correct conclusion. The judge has uninhibited power to put questions to the witness either during the chief examination or cross-examination or even during re-examination for this purpose. If a judge feels that a witness has committed an error or slip, it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. (See : (para 12) of State of Rajasthan v. Ani alias Hanif, (1997) 6 SCC 162 : AIR 1997 SC 1023).
v. Whether the appellant is entitled to the benefit of Exception 4 to Section 300 of the IPC?”
22. In rejoinder, Mr. Arvind Prabodh Dubey, the learned counsel for revisionist rejoined his earlier submissions and referred to the judgment of Supreme Court in Sovaran Singh Prajapati Vs. State of U.P., 2025 SCC OnLine SC 351. He has relied upon paragraphs 28, 30 and 30.1 in support of his submissions urged previously that the power under Section 311 Cr.P.C. cannot be invoked to fill in the lacuna in evidence and further the recall of PW-2 and PW-3 was not essential in the facts and circumstances of the case. Paragraphs 28, 30 and 30.1 of the aforementioned report read as under:-
“28. This frequent change in counsel as also the matter being reserved for judgment on the very day that a new counsel for the accused is brought on record, leads us to question the assistance given to the appellant by such lawyers. Was his case effectively argued? Were all the possible gaps in the prosecution case sufficiently explored and exploited to his advantage? Were the prosecution witnesses ably cross-examined leading to the creation of a reasonable doubt, wherever possible? All these questions arise in our mind, considering the situation of the defence counsel. To us, the imposition of the death penalty here appears fraught with danger and should not be sustained. We are supported in holding such an apprehension by the fact that this Court has recognized that sufficient time should be given to counsel to prepare the case and conduct the same on behalf of his client. Although, it is true that there can be no formulae for what may be considered sufficient, the same has to be determined in the facts and circumstances of the case. [See : Bashira v. State of U.P.36] As has already been noticed, there was a change of counsel recorded in the daily status of the Trial Court, arguments were closed on the very same day and the matter was reserved for judgment. What is the efficiency of the newly appointed counsel’s assistance to the appellant? This question stares in the face of the conclusion of capital punishment arrived at by the Court, more so when there was a frequent change of counsel during trial, losing out the continuity of thought process.
30. On Section 311 and the rejection of the application, we may refer to the observations of this Court in the Zahira Habibullah Sheikh (5) v. State of Gujarat37. It was said:
“26… The section is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and reexamine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.
27. 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 of 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 the Magistrate to issue 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 any 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 the wider the power the greater is the necessity for application of judicial mind.
28. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation : it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court…
29. The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross-examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra [(1967) 3 SCR 415 : AIR 1968 SC 178 : 1968 Cri LJ 231].”
(Emphasis supplied)
[See also : Jamatraj Kewalji Govani v. State of Maharashtra38; Rajendra Prasad v. Narcotic Cell39; Vijay Kumar v. State of U.P.40; Natasha Singh v. CBI41; Rajaram Prasad Yadav v. State of Bihar42; State v. N. Seenivasagan43; and Satbir Singh v. State of Haryana44]
30.1. A perusal and consideration of the aforesaid decisions reveal the following principles as governing the application of Section 311 Cr. P.C.:
(a) The Section is divided into two parts, the first being directory with the use of the word ‘may’ and the latter being mandatory with the use of the word ‘shall’.
(b) The power of the Court is couched in the widest terms possible with no express limitation thereon.
(c) The exercise of such power is not only the prerogative but also the duty of the Court, in connection with a witness who may be considered absolutely necessary, in the interest of justice.
(d) This power is to be used both for the benefit of the prosecution and the defence. To summon a witness because it serves the case of one of the parties and not the other, would be improper.
(e) This power can be exercised at any stage of proceedings, i.e. enquiry, trial or any other.
(f) Power is to be exercised judiciously since wider the power, greater the requirement of the application of a judicial mind.
(g) If a witness so-called under this power, gives evidence against the complainant, the latter should be given an opportunity to cross-examination. This power arises not under Section 311 but under the Indian Evidence Act, 1872.
(h) A witness cannot be recalled by the use of this power to simply fill up a lacuna in the case of the prosecution.”
23. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, the learned counsel representing first informant-opposite party-2 and upon perusal of record, this Court finds that the following questions arise for determination in present application;-
(i). Whether the bona-fide of the prosecution in filing the aforesaid application under Section 311 Cr.P.C., when examined in accordance with the parameters laid down in the case of Raja Ram Prasad Yadav (Supra), is fully satisfied.
24. Once the prosecution witnesses of fact i.e. PW-2 and PW-3 did not support the prosecution story in their examination-in-chief then in such a situation Court below ought to have declared them hostile. However, for reason best known to the prosecution, the aforementioned witnesses were not declared hostile. After the statements of almost all the witnesses were recorded, except a formal witness i.e. the Investigating Officer, the application under Section 311 Cr.P.C. dated 30.03.2024 was engineered by the prosecution only after a new counsel was engaged by the first informant.
25. Apart from above, perusal of aforesaid application will go to show that the questions proposed to be put to the witnesses sought to be recalled i.e. PW-2 and PW-3 have not been mentioned in the application. Since the questions proposed to be put to the witnesses have not been mentioned, therefore, no pleadings have been raised in the application under Section 311 Cr.P.C. regarding the relevancy of the same. In view of above, the logical question that will arise for determination is whether in the absence of above, there is bona-fide on the part of prosecution in filing the application dated 30.03.2024. Apex Court in the case of Raja Ram Prasad Yadav (Supra), has laid down the parameters, which are required to be considered while judging the bona-fide of an applicant in filing an application under Section 311 Cr.P.C. Paragraphs 22 and 23 of the report are relevant of the controversy in hand. Accordingly, the same are extracted herein under:-
“22. After noting the above submissions made on behalf of the accused, the trial court held as under:
“… After the evidence of the informant, Suresh Prasad (PW 9) on 16-3-2007 the Court of Additional Sessions Judge, FTC-5 closed the evidence of prosecution on 4-4-2007 after giving opportunity to the learned Additional Public Prosecutor to produce the remaining witness on 26-3-2007 and 4-4-2007 which he could not do on the ground that the time limited by the Hon’ble Court has expired. The Lordships of the Supreme Court have held in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [AIR 1964 SC 1563 : (1964) 2 Cri LJ 472] that ‘right to re-examine a witness arises only after the conclusion of cross-examination and Section 138 (of the Evidence Act) says it shall be directed to the explanation of any part of his evidence given during cross-examination which is capable of being construed unfavourably to his own side. The object is to give an opportunity to reconcile the discrepancies, if any, between the statements in examination-in-chief and cross-examination or to explain any statement inadvertently made in cross-examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross-examination. Where there is no ambiguity or where there is nothing to explain, question put in re-examination with the sole object of giving a chance to the witness to undo the effect of the previous statement should not be asked during re-examination (Section 142). Section 154 is wide in its scope and court can permit a person calling a witness to put question in the nature of cross-examination at the stage of re-examination provided it takes care to give opportunity to the adverse party to cross-examine the witness in the such case’.
It is clear from the aforequoted principles decided by the Hon’ble Apex Court and from the evidence of PW 9 as well as from the instant two aforesaid petitions filed on behalf of PW 9 and the Additional Public Prosecutor that the cross-examination of PW 9 does not contain any evidence against his evidence-in-chief which could be explained or made clear by re-examination of PW 9 through his re-examination vide Section 138, Evidence Act or Section 311 of the Criminal Procedure Code. It is also clear that PW 9 had filed petition after filing of the case against him by the accused. As such the two instant petitions are not maintainable. However, whether the hostility of PW 9 would have been tested on the touchstone of Section 145, Evidence Act by examining the IO as some other prosecution witness have supported the prosecution case. The evidence of the IO of the case is taken would have sufficed the end of justice.”
23. We find that the factors noted by the trial court and the conclusion arrived at by it were all appropriate and just, while deciding the application filed under Section 311 CrPC. We do not find any bona fides in the application of the second respondent, while seeking the permission of the court under Section 311 CrPC for his re-examination by merely alleging that on the earlier occasion he turned hostile under coercion and threat meted out to him at the instance of the appellant and other accused. It was quite apparent that the complaint, which emanated at the instance of the appellant based on the subsequent incident, which took place on 30-5-2007, which resulted in the registration of the FIR in Khizersarai Police Station Case No. 78 of 2007, seem to have weighed with the second respondent to come forward with the present application under Section 311 CrPC, by way of an afterthought. If really there was a threat to his life at the instance of the appellant and the other accused, as rightly noted by the court below, it was not known as to why there was no immediate reference to such coercion and undue influence meted out against him at the instance of the appellant, when he had every opportunity to mention the same to the learned trial Judge or to the police officers or to any prosecution agency. Such an indifferent stance and silence maintained by the second respondent herein and the categorical statement made before the court below in his evidence as appreciated by the court below was in the proper perspective, while rejecting the application of the respondents filed under Section 311 CrPC. In our considered opinion, the trial court, had the opportunity to observe the demeanour of the second respondent, while tendering evidence which persuaded the trial court to reach the said conclusion and that deserves more credence while examining the correctness of the said order passed by the trial court.”
26. Thus, when the contents of the application under Section 311 Cr.P.C. filed by the prosecution before Court below are examined in the light of the facts mentioned above and the parameters laid down by Apex Court in judging the bona-fide in filing an application under Section 311 Cr.P.C., in aforementioned judgment, it is apparent that no bona-fide on the part of the prosecution in filing the application under Section 311 Cr.P.C. is apparent.
27. Perusal of the order impugned goes to show that the application under Section 311 Cr.P.C. filed by the prosecution has been allowed by Court below on the findings that;- (I). PW-1 and PW-2, who are the eye witnesses of the occurrence and had fully supported the prosecution case in their previous statements under Section 161 Cr.P.C. as well as in their statements-in-chief. However, upon cross examination, aforementioned witnesses in their examination-in-chief have departed from their previous statements. It is on this ground that the prosecution has prayed for recall of aforementioned witnesses, (ii). The objections raised on behalf of accused that the application under Section 311 Cr.P.C. has been filed with delay and substantial progress has taken place in the trial, as such, no justifiable ground exists to allow the application, (iii). Since PW-2 and PW-3 in their examinations-in-chief have not supported the prosecution story, therefore, in order to ascertain the true position and for a just decision, the prayer of the prosecution for recall of aforementioned witnesses is judicious, (iv). The prayer of the prosecution in the light of above is also in consonance with the principles of natural justice and the parties will get opportunity to establish the respective case/defence and (v). The prosecution does not wish to fill in the lacuna in evidence but has prayed for recall of PW-2 and PW-3 so that they can re-examined on behalf of the prosecution in respect of the deposition made in their examination-in-chief.
28. Before proceeding to consider the veracity of the findings recorded by Court below in the order impugned in the light of the submissions and counter submissions urged by the counsel for the parties, it shall be useful to refer to certain judgments of the Supreme Court, wherein some of the principles governing the exercise of jurisdiction under Section 311 Cr.P.C. stand crystallized.
29. In Ratanlal Vs. Prahlad Jat and Others (2017) 9 SCC 340, the Apex Court observed that a witness cannot be recalled simply on the basis of an observation that the recall is necessary for ensuring a free trial. Reference in this regard be made to paragraph 20 of the report, which is relevant for the controversy in hand. Accordingly, the same is extracted herein below:-
“20. In State (NCT of Delhi) v. Shiv Kumar Yadav [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510] , it was held thus:
“… Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined.”
30. Upon perusal of record, this Court finds that in the trial of accused/applicant pending before Court below 19 prosecution witnesses were nominated in the charge sheet/police report. Moreover, the application under Section 311 Cr.P.C. was filed by the prosecution after one year from the date, the prosecution witnesses of fact had deposed before Court below. Except for a formal witness i.e. Investigating Officer, who had conducted investigation of concerned case crime number all other witnesses have already deposed before Court below. As such, the application under Section 311 Cr.P.C. was filed at a belated stage.
31. Section 311 Cr.P.C. enables the Court of criminal jurisdiction to recall a witness for further cross examination or re-examination. However, the substantive law in this regard is to be found in Sections 137, 138 and 154 of the Evidence Act. Accordingly, the same are reproduced herein below-
Examination-in-chief. — The examination of witness by the party who calls him shall be called his examination-in-chief.
Cross-examination. — The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination. –The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
Order of examinations. — Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination. — The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
Question by party to his own witness. –1[(1)] The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.
2[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness]
32. The import of Section 311 Cr.P.C. has been dealt with by the Apex Court in the case of Varsha Garg Vs. State of Madhya Pradesh & Others, 2022 SCC OnLine SC 986, wherein the Court has observed as under in paragraphs 36, 37, 44 and 45;-
36. up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P.19, State of W.B. v. Tulsidas Mundhra20, Jamatraj Kewalji Govani v. State of Maharashtra21, Masalti v. State of U.P.22, Rajeswar Prosad Misra v. State of W.B.23 and R.B. Mithani v. State of Maharashtra24, the Court held:
“27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.”
37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.
44. In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat26, which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd.27, the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court’s determination of the application should only be based on the test of the essentiality of the evidence. It noted that:
“28. 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 side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court (2006) 3 SCC 374 (2008) 11 SCC 108 has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be “filling of loopholes” That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.”
45. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad (supra), the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. In Rajendra Prasad (supra), the Court had held that:
“8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the 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. (emphasis supplied)”
33. It is thus evident that a prosecution witness can be summoned by the prosecution itself for re-examination also but on the grounds as observed by the Apex Court in the case of Varsha Garg (Supra).
34. The case in hand is a peculiar one, the prosecution set out to prove the very story, which it wanted to prove against the accused/applicant. In this regard, apart from other witnesses adduced on behalf of prosecution, two important witnesses of fact i.e. PW-2 Smt. Lilawati Devi and PW-3 Jagdish Pancy were also adduced. Aforementioned witnesses supported the prosecution story in their previous statements under Section 161 Cr.P.C. as well as in their statement-in-chief. However, during the course of their cross examination on behalf of accused, aforementioned witnesses resiled from their previous statements and pleaded ignorance. In all probability, aforementioned witnesses ought to have declared hostile but for reasons best known to the Court below, it did not do so.
35. The application under Section 311 Cr.P.C. was, accordingly, filed by the prosecution for recall of aforementioned witnesses for their re-examination by the prosecution itself. Perusal of the application will go to show that the questions that are required to be put to the aforementioned witnesses have not been mentioned in the application. Since the prosposed questions have not been mentioned, therefore, the relevancy of the same has also not been detailed in the application itself. As such, there is no material to find out the bona-fide of the prosecution in filing the said application.
36. There is yet another aspect of the matter. The prosecution witnesses PW-2 and PW-3 have already been cross examined by the prosecution but they have not supported the prosecution story. Upon re-examination, the defence will again have an opportunity to cross examine them. As such, summoning of the witnesses noted above, will create a more complex situation rather than solving any.
37. Recall of a witness is an exception to the general rule. What ultimately will decide the correctness of an order passed by Court on an application under Section 311 Cr.P.C. stands crystallized in the judgment of the Supreme Court in Rajendra Prasad Vs. Narcotic Cell through its Officer, (1999) 6 SCC 110, wherein the Court has observed as under in paragraphs 7, 8, 9 and 10 of the report. For ready reference, the same are reproduced herein below;-
“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 by saying that the Court could not fill the lacuna in the prosecution case’. A lacuna in 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 proved. A corollary of any such latches or mistakes during the conducting Of a case cannot be understood as the 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 prosecution case. The advantage of it should normally go to the accused in the trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can before-closed 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.
9. The very same decision Mohanlal Shamiji Soni v. Union of India, (supra) which cautioned against filling up lacuna has also laid down the ratio thus :
“It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examined any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.’
10. Dealing with Corresponding Section in the old Code Section 540. Hidyatullah Jias the learned Chief Justice then was) speaking for a three-judge bench of this Court had said in Jamatraj Kewalji Govani v. The State of Maharashtra, [1967] 3 SCR 415 as follows :-
“It would appear that in our criminal jurisdiction, statutory law Confers a power in absolute terms to be exercised at any stage or the trail to summon a witness or examine one present in Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercise the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case.”
38. When a parallel is drawn in between the aforementioned observations and the grounds pleaded for recall of PW-2 and PW-3 and the findigns returned by Court below in the impugned order, it is apparent that the recall of aforementioned witnesses was prayed for a free trial. No finding has been returned by Court below that the recall of PW-2 and PW-3 is essential to determine the truth and rendering a just decision. The ground that recall of a witness is necessary for a free trial has already been negated by the Apex Court in the case of Ratan Lal (Supra). As such, the Court below has erred in allowing the application under Section 311 Cr.P.C.
39. In view of the discussion made above, this Court finds that Court below has committed a jurisdictional error in passing the order impugned. As such, the present application succeeds and is liable to be allowed.
40. It is, accordingly, allowed.
41. The order impugned dated 14.10.2024 passed by the Additional Sessions Judge, Court No.-1, Deoria in Sessions Trial No. 272 of 2019 (State Vs. Vishnu Pandey), under Sections 302, 201 IPC, Police Station-Bankata, District-Deoria shall stand quashed. Resultantly, the application dated 30.03.2024 under Section 311 Cr.P.C. (Paper No. 48 Kha) filed by the prosecution before Court below shall stand rejected.
Order Date :- 09.07.2025
Vinay
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