Kamal Kishore Singh @ Pappu Singh v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

Court No. - 13 Case :- APPLICATION U/S 482 No. - 7682 of 2024 Applicant :- Kamal Kishore Singh @ Pappu Singh Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Awadhesh Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.

¶1Heard Shri Awadhesh Kumar Mishra, learned counsel for the applicant as well as Shri Ajay Srivastava, learned A.G.A. for the state and perused the records.

¶2The present application has been filed for the following main relief:- "to set aside the impugned order dated 03.08.2024 on application U/s 311 Cr.P.C. dated 31.07.2024 passed by Learned Additional Session Judge Court No. 1, Lucknow on the application filed under section 311 for Recall of the Prosecution Witness No. 10 in Criminal Trial no. 1214/2017 pursuant to Case Crime No. 151/2016 Lodged under section 302, 34, 404, 411, 504, І.Р.С. & 7CLA Act & 30 Arms Act Police Station Hazaratganj District Lucknow in State of U.P. Vs. Kamal Kishore Singh @ Pappu and others by which the Learned Trial Court has rejected the application for summoning the prosecution witness PW-10, for cross-examination, after summoning the Lower Court record and direct to consider the application filed under section 311 Cr.P.C. in the interest of justice."

¶3By means of the present application under Section 482 Cr.P.C./Section 528 B.N.S.S., the accused/applicant has approached this Court challenging the order dated 03.08.2024, passed by Additional Session Judge Court No. 1, Lucknow (in short 'trial court'), in Session Trial No. 1214/2017 (State Vs. Kamal Kishore Singh @ Pappu Singh and Others) on an application preferred by the accused/applicant under Section 311 Cr.P.C. praying therein to summon Prosecution Witness No. 10/Vijay Pal Singh, Investigating Officer.

¶4Brief facts of the case, which are relevant for the purpose of disposal of the instant application, are to effect that an FIR was lodged on 18.03.2016 registered as Case Crime No. 0151 of 2016 under Sections 147, 148, 149, 302, 504, 120B IPC and Section 7 of Criminal Law Amendment Act at Police Station - Hazrat Ganj, District -Lucknow against Pappu Singh, ShyamLal Yadav, Ajit Singh @ Ballu, Dinesh Singh, Arvind Singh @ Narendra Pahadi, Pappu Singh Gomti Nagar, J.P. Singh and two-three unknown persons.

¶5The investigating Officer (in short "I.O."), after conducting the investigation, filed the charge-sheet No. 65/2016 dated 05.05.2016 against Pappu Singh alias Kamal Kishore Singh S/o Om Prakash Singh Thakur, Shyam Lal Yadav S/o Harilal Yadav, Dinesh Singh S/o Late Someshwar Singh under Sections 302, 34, 404, 411, 504 IPC and Section 7 of Criminal Law Amendment Act as also Section 30 of the Arms Act.

¶6The case after filing of the charge-sheet was committed to the Court of Sessions where the case was registered as Session Trial No. 1214/2017 (State Vs. Kamal Kishore Singh @ Pappu Singh and Others).

¶7The accused on denial on charges framed by the trial Court was put to trial. The prosecution to established its case examined witnesses of the facts as also I.O. Vijay Pal Singh (P.W.10) and other witnesses.

¶8Witness namely I.O. Vijay Pal Singh (P.W.10) proved the charge-sheet and the documents annexed thereto. P.W.10 was also cross-examined by the defense on 13.09.2019. In other words, I.O. Vijay Pal Singh (P.W.10) was duly cross-examined by the counsel engaged by the applicant on 13.09.2019

¶9After huge delay of about more than four years, the accused/applicant preferred an application dated 17.01.2024 under Section 311 Cr.P.C. to summon I.O. Vijay Pal Singh (P.W.10) for further cross-examination and this application of the accused/applicant was rejected by the trial Court vide order dated 17.01.2024.

¶10Without challenging the order dated 17.01.2024, the applicant again moved an application under Section 311 Cr.P.C. on 31.07.2024.

¶11It would be apt to indicate that after rejection of the application dated 17.01.2024 which was rejected vide order dated 17.01.2024 itself by the trial Court, the applicant preferred an application under Section 408 Cr.P.C. making certain allegations against the trial Court to get the case transferred which was registered as Criminal Misc. Case No. 723 of 2024 (Kamal Kishore Singh @ Pappu Singh Vs. State of U.P. ) and the same was rejected by the Session Judge, Lucknow vide order dated 10.06.2024.

¶12Indisputedly, the trial is at the stage of arguments.

¶13In the aforesaid background of the case, present application has been filed.

¶14It would be apt to extract the impugned order dated 03.08.2024. "

पततवललपसतत हहई।

पतकतरकरतययजतनयपरअभभयतकगणकमलभकशशरसससहउररपपपपसससह,

भदनयशसससहव

शयतमलतलमयभवदतनअसधवकतउपसससत।भवदतनसहतयकसजलतशतसककय असधवकत,

रफजदतरलउपसससत।भवदतनअसधवकतअभभयतककमलभकशशरसससहउरर

पपपपसससहदतरतपतसरनतपतअसतगरतधतरत-311 दस.प.सस.

भदनतसभकत31.07.2024 कय

भनसततरणपरबलभदयतगयतहह।

पतसरनतपतअसतगरतधतरत-311 दस.प.सस.

भदनतसभकत31.07.2024 पल.डबलप.-10 भवजय

पतलसससह,

भववयचककशपतननपरलकणहयतततलबभकएजतनयकयभनवयदनकयसतसपसतत

भकयतगयतहह,

सजसममयहआधतरसलयतगयतहहभकउकसतकलसयदफरतनसजरह

पतसरनतपतममउभलसखतचतरपशनपपछयजतनयछपटगययसय।उकसतकलकयसतकयकय

समयअभभयतककमलभकशशरसससहउररपपपपसससहकतरतगतरममभनरदसत, सजस

कतरणअपनयअसधवकतसयउभचतपकतरसयसलतहमशभवरतनहशनयकयकतरणउक

पशनसतकलसयपपछयनहहजतसकयसय।

भवदतनसहतयकसजलतशतसककयअसधवकतरफजदतरलदतरतआपसतपसतत करतयहहए

कसनभकयतगयतभकउकपतसरनतपतभवलमबकतररतकरनयकयउदयशयसयभदयतगयत

हह।पपवरममभदनतसक17.01.2024

कशभलपतसरनतपतअसतगरतधतरत-311 दस.प.सस. भदयत

गयतसत,

सजसकतभनसततरणनयतयतलयदतरतभकयतजतचतकतहह।उकतथयकश

पतसरनतपतममभछपतयतगयतहह,

अतनपतसरनतपतभनरसतभकएजतनयकतभनवयदनभकयत

गयतहह।

सतनतएवसपततवललकतअवलशकनभकयत।

पततवललकयअवलशकनसयसपषहहभकपसतत पकरणकयभववयचकसतकलपल

. डबलप

.-10

ककमतखयपरलकतभदनतसक

15.02.2019

व 18.04.2019

कशअसभकतककगयलतसत

भदनतसक

13.09.2019

कशअभभयतककमलभकशशरउरर पपपपसससहकय भवदतन

असधवकतदतरतसतकलसयसजरहककगयल।अभभयतकककओरसयकतरकभवसतत

पभतपरलकतककगईहहतसतउसकयपशचतततभलतलनगवतहतनअभभयशजनदतरतपरलभकत

करतएगएहह।भवचतरणसमतपहशनयकयपशचतततपततवलललगतततरबहसममभनयतहह।

पततवललकयअवलशकनसययहभलसपषहहभकपपवरममभलइसलआशयकतपतसरनतपत

भवदतनअसधवकतअभभयतकदतरतभदयतगयतसत

,

जशभदनतसक

17.01.2024

कश

नयतयतलयदतरतभनरसतभकयतगयत

,

इसकयबतवजपदभलसतकलपल

. डबलप

. 10

सयपतनन

सजरहहयततयहपतसरनतपतपसतत भकयतगयतहह

,

सजससयपकटहशततहहभकइस

पतसरनतपतकतउदयशयमततइससतपरलकणमहकककतयरवतहलकशभवलसमबतकरनतहह।

यहतहउलयखनलयहहभकपसतत पकरणकशपरलकतयतउचचनयतयतलयदतरतभनयत

कतसलकसमयममभनसततररतकरनयहयततभनदरभशतभकयतगयतहह।

अभभयतकपकदतरत

ककगयलकभमययकशदपरकरनयहयततसतकलसयपतननसजरहभकययजतनयकयसलययउसयतलब

भकययजतनयकतकशईनयतयशभचतवभवसधकआधतरनहहहह।अतनपतसरनतपतअसतगरत धतरत-311 दस.प.

ससभदनतसभकत31.07.2024

भनरसतभकययजतनययशगयहह। आदयश

पसतत पतसरनतपतअतसगरतधतरत-311 दस.प.सस.

भदनतसभकत31.07.2024

भनरसतभकयत

जतततहह।पततवललवतसतयबहसभदनतसक08.08.2024

कशपसतत हश।"

¶15Challenging the order dated 03.08.2024, learned counsel for the applicant says that as per settled principle of law the application ought to have been allowed by the trial Court and the order impugned is against the principle settled in this regard as also the observations made by the Hon'ble Apex Court in regard to expression 'Fair Trial'. As such, interference of this Court is required in the matter.

¶16Learned AGA opposed the present application which relates to recall of witness in exercise of power conferred under Section 311 Cr.P.C.. He stated that as per settled principle of law, a witness cannot be recalled or permitted to be recalled. Prayer is to affirm the impugned order and dismiss the application.

¶17Considered the submissions advanced by the learned counsel for the parties and perused the record.

¶18Considered the aforesaid facts and the observations made by the trial Court in the order dated 03.08.2024 and the principles related to recall of witness under Section 311 Cr.P.C. settled by the Hon'ble Apex Court in the case(s) of Mohd. Khalid Versus State of West Bengal (2002) 7 SCC 334; Natasha Singh vs. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828 : 2013 SCC OnLine SC 444; Mannan S.K. and Ors. V State of West Bengal and Anr., AIR 2014. SC 2950. State of Haryana vs. Ram Mehar and others (2016) 8 SCC 762; Swapan Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328; Varsha Garg vs. State of Madhya Pradesh and Others 2022 SCC OnLine SC 986 and as also by this Court in Application under Section 482 Cr.P.C. No. 274 of 2022 (Ram Nayak Singh vs. State of U.P. & Another).

¶19It is well settled by catena of decisions by the Hon'ble Apex Court that the power under Section 311 Cr.P.C. must be exercised with the care, caution and circumspection and only for strong and valid reasons. The recall of a witness already examined should not be a matter of course and discretion given to the court in this regard has to be exercised judicially to prevent failure of justice. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society.

¶20The Court is fully conscious of the position that after all the trial is basically for the prisoners/accused and the Court should afford an opportunity to them in the fairest manner possible. At the same time, the Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. Recalling of witnesses has to be applied on the basis of judicially established and accepted principles.

¶21In the facts of the case it would be apt to refer the observations made in the judgment(s) passed in the case of Mohd. Khalid (Supra) and Ram Mehar (Supra).

¶22In the case of Mohd. Khalid (Supra), the Hon'ble Apex Court observed as under:- "Before parting with the case, we may point out that the Designated Court deferred the cross-examination of the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in-chief is over, unless compelling reasons arc there, the Trial Court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh and others (2001) 4 SCC 667 and N.G. Dastane v. Shrikant Shivde (2001) 6 SCC 135. In the case of State of U.P. v. Shambhu Nath Singh and others (2001) 4 SCC 667, this Court deprecated the practice of Courts adjourning cases without examination of witnesses when they are in attendance with the following observations:- "9. We make it abundantly clear that if a witness is present in Court he must be examined on that day. The Court must know that most of the witnesses could attend the Court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a said plight in the Trial Courts that witnesses who are called through summons or other processes stand at a doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by every one provided the presiding officer concerned has a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are standard on account of the dimension of his judicial powers, can be a persuading factor for granting such adjournments lavishly, that too in a casual manner."

¶23In the case of Ram Mehar (Supra). the Hon'ble Apex Court observed as under:- "23. In Bablu Kumar and others v. State of Bihar and another, (2015) 8 SCC 787 the Court referred to the authorities in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC, Rattiram and others v. State of Madhya Pradesh (2012) 4 SCC 516, J. Jayalalithaa and others v. State of Karnataka and others (2014) 2 SCC 401, State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715 and other decisions and came to hold that keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. It has been further stated that the law does not countenance a "mock trial". It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. We may note with profit though the context was different, yet the message is writ large. The message is - all kinds of individual notions of fair trial have no room"." "38. At this juncture, we think it apt to state that the exercise of power under Section 311 Cr.P.C. can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words "magnanimous approach" and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance".

¶24In the facts of the case it would be apt to refer the observations made in the judgment passed by the Hon'ble Apex Court in the case of Munna Lal Vs. State of Uttar Pradesh 2023 SCC OnLine SC 80. In this case, an accused approched the Hon'ble Apex Court against the judgment of conviction and this appeal was allowed.

¶25In the case of Munna Lal (Supra), the Hon'ble Apex Court observed as under:- ..28. Before embarking on the exercise of deciding the fate of these appellants, it would be apt to take note of certain principles relevant for a decision on these two appeals. Needless to observe, such principles have evolved over the years and crystallized into 'settled principles of law'. These are:

(a). Section 134 of Indian Evidence Act, 1872, enshrines the well-recognized maxim that evidence has to be weighed and not counted. In other words, it is the quality of evidence that matters and not the quantity. As a sequitur, even in a case of murder, it is not necessary to insist upon a plurality of witnesses and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a conviction.

(b). Generally speaking, oral testimony may be classified into three categories, viz.:

(i) Wholly reliable;

(ii) Wholly unreliable;

(iii) Neither wholly reliable nor wholly unreliable. The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s). However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.

(c). A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.

(d). Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere non-examination would not render the aprosecution case fatal.

(e). Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance.

¶26The view of the Hon'ble Apex Court on the issue of 'non-examination of Investigating Officer', can also be deduced from the following judgments.

(i) In the case of Munna Lal (supra) after considering the facts and evidence on record, the Hon'ble Apex Court also observed that "non-examination of Investigating Officer creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the case of prosecution."

(ii) In the case of Bahadur Naik Vs. the State of Bihar (2000) 9 SCC 153, the Hon'ble Apex Court has observed that "non-examination of the Investigating Officer would not be fatal to the prosecution if there were no material contradictions in the testimony of the witnesses."

(iii) In the case of Raj Kishore Jha Vs. the State of Bihar and Others (2003) 11 SCC 519, the Hon'ble Apex Court has observed that "Mere non-examination of Investigating Officer does not in every case cause prejudice to the accused or affects that creditability of the prosecution version."

(iv) In the case of Baldev Singh Vs. the State of Haryana (2015) 17 SCC 554, it has been observed that "Mere non-examination of investigating officer does not in every case cause prejudice to the accused or affects the credibility of the prosecution case."

(v) In the case of Gandipally Srinivas Vs. The State of A.P. (2005) 13 SCC 712, the Hon'ble Apex Court has observed that "Coming to the next submission of the learned counsel for the accused that non-examination of the Investigating Officer is fatal to the case of the prosecution, it has to be seen that the learned Magistrate had assigned valid reasons for non-examination of the Investigating Officer. In a criminal case, the evidence of the Investigating Officer has its own importance, but non-examination of the Investigating Officer is not fatal in all the cases."

(vi) In the case of Birinder Rai Vs. State of Bihar. AIR 2005 SC 1284, the Hon'ble Apex Court has observed that ?the investigating officer was not examined in this case and that has resulted in prejudice to the accused. Having gone through the evidence of witnesses and other material on record, we do not find that any prejudice has been caused to the defence by the non-examination of the investigating officer. The mere fact that according to the seizure list a stick with blood stains and pellet marks was seized from the place of occurrence, would not advance this argument any further. The seizures have not been proved in this case because the investigating officer was not examined, and the seizure witness has turned hostile. We, therefore, ignore the seizures made and base our decision on the other evidence and the evidence of two eyewitnesses, who have impressed us as truthful.?

¶27Upon due consideration of aforesaid facts as also the law settled, this Court does not find any illegality in the impugned order dated

03.08.2024. It is for the following reason(s):-

(i) An earlier application dated 17.01.2024 under Section 311 Cr.P.C. for summoning I.O. Vijay Pal Singh (P.W.10) was rejected vide order 17.01.2024 thereafter, the accused/applicant preferred a transfer application under Section 408 Cr.P.C. making allegations therein against the trial judge which was rejected vide order dated 10.06.2024 and thereafter, without challenging the order dated

17.01.2024, the accused/applicant preferred an application dated 31.07.2024 for summoning I.O. Vijay Pal Singh (P.W.10).

(ii) The aforesaid indicates that on one pretext or other, the applicant wants to prolong the trial/criminal proceedings pending before the trial Court.

(iii) I.O. Vijay Pal Singh (P.W.10) has already been examined and cross-examined and he has also proved the charge-sheet and the material collected during the investigation.

(iv) In the instant case, it has not been shown, prima facie, that what prejudice would be caused if I.O. Vijay Pal Singh (P.W.10) is not summoned as also that the applicant dated

31.07.2024 under Section 311 Cr.P.C. is vague.

(v) The trial is pending since 2017 and almost seven years have lapsed and is at the stage of argument and the applicant is avoiding the proceedings before the trial Court and just with the motive to delay the trial, the application under Section 311 Cr.P.C. was preferred.

¶26For the aforesaid, the instant application is hereby rejected. Cost made easy. Order Date :- 21.9.2024 Mohit Singh/- High Court of Judicature at Allahabad, Lucknow Bench