Umesh Yadav v. State

1. The present petition is filed under section 482 of the Code of Criminal Procedure,1973 ( hereinafter referred as “Cr.P.C.”) against the impugned order dated 16.02.2019 passed by the court of Ms. Sonam Singh, MM (Mahila Court) Central, Tis Hazari, New Delhi (hereinafter referred as “Trial Court”) in case titled as State V Umesh Yadav arising out of FIR bearing No. 0011/2014 registered at P.S. Timarpur under sections 354/354A/323/506 Indian Penal Code, 1860 (hereinafter referred as “IPC”). 2022:DHC:3412 CRL.M.C. 3559/2019 Page 2

2. The perusal of FIR bearing No. 0011/2014 dated 11.01.2014 reflects that it was registered under sections 354/354A/323/506 IPC on the basis of the complaint made by the complainant “P” pertaining to the incident happened on 11.01.2014. After completion of investigation, the charge-sheet was filed under sections 354/354A/323/506 IPC and the trial was stated to be pending in the Court of Ms. Deepika Singh, MM, Tis Hazari Courts/Successor Court.

3. The petitioner during the trial filed an application under section 311 Cr.P.C. for recalling PW-1 i.e. the complainant “P” and PW-7 “IO SI Surender” who was the Investigating Officer for their further cross-examination. It was mentioned in the application that the petitioner preferred an RTI application dated 27.07.2016 seeking details of the calls made from mobile bearing number 875011903[8] phone belonging to the complainant/PW-1 “P” made between 10.01.2014 and 11.01.2014. Thereafter, the petitioner received an Intimation from the RTI Cell vide letter dated 19.08.2016 which was lost by the petitioner. The petitioner also changed his counsel to whom he apprised about misplacing of the letter dated 19.08.2016. CRL.M.C. 3559/2019 Page 3 Thereafter the petitioner filed another RTI application on 30.07.2018 seeking necessary information and in pursuance of said application, a response dated 28.08.2018 was sent to the petitioner. It is further stated by the petitioner that upon perusal of response dated 28.08.2018, it is reflected that no PCR call was made by the complainant/PW-1 “P” against the petitioner. On the basis of these letters/responses, the petitioner prayed for recalling of PW-1 and PW-7 for their further cross-examination to ensure the fair trial.

4. The application under section 311 Cr.P.C. filed by the petitioner was dismissed vide order dated 16.02.2019 by the Court of Ms. Sonam Singh, MM, Mahila Court-02, Central District, Tis Hazari Court by observing:- Perusal of record reveals that the complainant was cross examined at length on 25.01.2016 and PW -7 IO SI Surender was cross-examined also at length on 19.09.2018. Hence, it is apparent that the accused has been given ample opportunities to cross examine the complainant and IO. The accused had knowledge of the alleged PCR calls, since 27.07.2016, when he made the first RTI application yet till 05.11.2018, no application under section 311 Cr.P.C. was filed. The present application which has been filed after more than two years, is devoid of merits. Only because, the record/documents of the accused were lost, or are contradictory to previous response, it cannot be a ground to scuttle CRL.M.C. 3559/2019 Page 4 the procedure of the court by recalling the witnesses. It is settled law that the court can exercise its power under Section 311 Cr. PC only for strong and valid reasons and the said power is to be exercised with great caution and circumspection. Allowing the said application, which has been moved at the stage of statement of accused u/s 313 Cr.PC, would derail the entire trial. Hence, in view of the aforesaid discussion, the aforesaid application stands dismissed. Application is disposed off accordingly.

5. The petitioner being aggrieved, filed the present petition and challenged the impugned order on the grounds that the impugned order is contrary to the facts and law and it is passed without appreciating the facts and circumstances of the case. The trial Court has not appreciated the provision under section 311 Cr.P.C. in the right perspective and is against the law as settled down by the superior courts. The impugned order is based on conjecture and surmises. It was prayed that the impugned order be set aside. The counsel for the petitioner argued on the facts and law as stated in the petition.

6. Section 311 Cr.P.C. deals with the power of the Court to summon material witness. It reads as under:-

311. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as CRL.M.C. 3559/2019 Page 5 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.

7. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar V State of Uttar Pradesh and Another 2011(8) SCC 136. “17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason.”

8. This principle has been further reiterated in Mannan Shaikh and Others V State of West Bengal and Another 2014(13) SCC 9 59 and thereafter in Ratanlal Vs. Prahlad Jat and Others 2017(9) SCC 340 and Swapan Kumar Chatterjee Vs. Central Bureau of CRL.M.C. 3559/2019 Page 6 Investigation 2019(14) SCC 328. The relevant paras of Swapan Kumar Chatterjee are as under:- “10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and reexamine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or

(ii) to recall and reexamine any such person if his evidence appears to be essential to the just decision of the case.

11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.”

9. It was observed in Manju Devi V State of Rajasthan, (2019) 6 SCC 203 that the length/duration of the case cannot displace the basic requirement of ensuring the just decision after taking all the CRL.M.C. 3559/2019 Page 7 necessary and material evidence on record. It was observed as under:- An application under Section 311 could not be rejected on the sole ground that the case had been pending for an inordinate amount of time (ten years there). Rather, it noted that “the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness”.