Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Change In The Circumstances Is Essential For Re-exercising Power U/s 311 Cr.P.C.
JUDGEMENT TITLE : Vinod Kumar Singh Vs. State Of U.P. On 16/12/2011 By Allahabad High Court
CASE NO : APPLICATION U/S 482 NO. 13599 OF 2010
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

COURT NO. 53

AFR

Criminal Misc. Application No. 13599 Of 2010


Vinod Kumar Singh ... Applicant

Versus

State Of U.P. And Others ... Respondent.

Hon. Vinod Prasad, J

Applicant Vinod Kumar Singh, In This 482 Application, Is Aggrieved By The Impugned Order Dated 6.4.2010, Passed By VIth Additional Session's Judge, Allahabad In S.T. No. 40 Of 2002, State Vs. Smt. Menka Singh And Others, By Which Trial Judge, While Exercising Powers U/s 311 Cr.P.C., Has Rejected Applicant's Prayer For Re Summoning The Investigating Officer, PW7 And Re- Examine Him, As In Applicant's Opinion Trial Judge Has Committed Both Misfeasance And Non-misfeasance In Passing The Impugned Order And Has Wrongly Negated Applicant's Prayer. The Grounds On Which Applicant Prayed For Recall Of Investigating Officer Was Mentioned In The Application, Annexure No.1, Which Was Moved By The Public Prosecutor On 28.1.2010. Before Adverting To The Merits And De Merits Of Instant Application, It Is Essential To Have A Search Light On The Back Ground Facts, A Resume Of Which Is Sketched Below.
One Virendra Singh, A Clerk In Criminal Appeal Section Of This Court, Was Murdered In The Intervening Night Between 14th /15th August 2001, In House No. 715-A, Dariabad, P.S. Atarsuiya, District Allahabad. In Connection With Husband's, Murder Wife Menka Singh Approached Senior Superintendent Of Police, Allahabad, On17.10.2001, Through An Application, Annexure No. 5, Penning Down Therein That, In The Night Of The Incident, One Lavlesh Singh Alias Raju S/o Sada Shiv Singh, R/o Kapsethi, Karvi, District Chitrakoot, Had Come To Her House At 2 A.m. And Had Knocked The Door Which Then Was Opened By Menka Singh. Although Aforesaid Lavlesh Singh Alias Raju Was Going To Solemnise Marriage With Her Younger Sister But He Had An Evil Voluptuous Design And Infatuation For Menka Singh. He Had Informed Her That He Will Keep Her With Him Either In This World Or In The Next World.
Murder Crime Was Investigated And After Conclusion Of It Widow Menka Singh And Two Other Persons Were Charge Sheeted And Their Trial Proceeded As Aforesaid Session's Trial. In The Trial Investigating Officer Was Examined As P.W. 7 And After His Evidence Was Over He Was Discharged. After Closure Of Entire Prosecution Evidences, Applicant Informant Desired To Get The Said Investigating Officer Re-summoned And Re- Examined U/s 311Cr. P.C. And For That End He Moved An Application Before The Trial Judge But His Prayer Was Disallowed, As Trial Judge Rejected His Application U/s 311 Cr.P.C. Vide Order Dated 25.7.2009.In Criminal Misc. Application No. 19311 Of 2007, Applicant Challenged Said Rejection Order U/s 482 Cr.P.C. Before This Court. Subsequently, For The Same Prayer, Applicant Made A Second Application Before The Trial Judge But His Second Endeavour Also Metted With The Same Fate, As Trial Judge, For The Second Time Also , Rejected Applicant's Prayer U/s 311 Cr.P.C. And Did Not Summon The I.O. Vide Order Dated 3.8.2007. Being Dissatisfied By This Second Order Also, Applicant Approached This Court In Second 482 Cr. P.C. Applications 19731 Of 2009. Both The Aforesaid 482 Cr. P.C. Applications Came Up Before Me And Vide Order Dated 18.11.2009 (Annexure No. 6 ), It, Both Were Disposed Off By Observing That There Was No Error In Both The Impugned Orders. In Annexure No. 6, It Was Mentioned As Follows:-
"After Hearing Learned AGA In Opposition, I Do Not Find Any Illegality Being Committed By The Trial Judge In Passing The Impugned Order Dated 3.8.2007, Which Has Been Challenged In Criminal Misc. Application No. 19311 Of 2007, By Which The Trial Judge Has Rejected The Prayer Of The Informant Applicant To Summon The I.O. For Re-examination. It Is Recollected That The I.O. Has Been Examined As P.W. 7 In The Concerned S.T. No. 40/02. The Trial Judge Has Rejected The Same Prayer On 25.7.2009, Which Has Been Challenged In Another Criminal Misc. Application No. 19731 Of 2009. Both The Impugned Orders, In Both The Criminal Misc. Applications, Do Not Suffer From Any Error Of Law Or That Of Fact. The Apprehension Of The Informant That The I.O. Was In Collusion Of The Accused Is Without Any Basis."
Thus, While Considering The Identical Prayer Made By The Informant, This Court Found That, On Both The Occasions, Trial Judge Could Not Be Faulted With In Rejecting Application's Applications. Order In Annexure No.6, Therefore, Was On The Merits Of The Matter. Subsequent To The Above Proceedings, Informant Made A Third Attempt And Moved An Application/s 311 Cr.P.C. Once Again, For Re-summoning Of The I.O. For His Re-examination As Well As Two Constables For Their Examinations. This Time Trial Judge Allowed Applicant's Prayer, In Part, By Passing Impugned Order Dated 6.4.2010, Which Is Under Challenge. Although Trial Judge Allowed Applicant's Prayer To Summon Two Constables Chhotey Lal Rai And Iqbal Ahmad, For Their Examination In The Trial, But, It Again, Rejected His Prayer For Re-summoning The I.O. For His Further Examination. Aggrieved By The Inaction Of The Trial Judge In Respect Of The I.O., PW7, That This 482 Application Has Been Preferred By The Applicant.
I Have Heard Sri L.S. Yadav, Learned Counsel For The Applicant And Sri Patanjali Mishra, Learned AGA For The State.
Harangued Submissions By Sri L.S. Yadav, Advocate Are That The Facts Mentioned In The Annexure No.1 Were Essential For A Just And Proper Decision Of The Case, Therefore Trial Judge Eschewed His Responsibility In Rejecting The Prayer For Summoning Of The I.O. It Was Submitted That The Wife Of The Deceased Had Hatched Up A Conspiracy To Get Her Husband Annihilated, Which Conspiracy Was Surfaced Subsequently And It Was Revealed That In Execution Of That Conspiracy, Accused Lavlesh Kumar Alias Raju, Aforesaid, And His Socio Criminis Jagat Pal Alias J.P. Had Assaulted The Deceased With Hockey, Causing Fatal Injuries On His Head And Thereafter They Had Strangulated Him To Death With A Towel (angauchha) On The Intervening Night Between 14/15. 8.2001 At 3 A.m. Inside The Room Where The Deceased Was Sleeping On His Bed. Menka Singh, Wife Of Deceased, Had Played An Active Role, As A Conspirator, In This Murder Crime. It Was Submitted That CMO Report, Spot Inspection Note, Seizer Memo Of Recovery Of Weapon Of Crime, Recovery Of Hockey Near The Over Bridge, Which Was Concealed Beneath The Bridge, G.D. No. 41 And GD No. 44, All Had Not Been Got Proved By The Prosecution As Maneka Singh Was The Daughter Of A Police Personnel. It Was Further Rued That Forensic Science Laboratory, Report , Although Existed On The Trial Court Record, Was Also Not Got Exhibited. It Was Further Stated That Neither Constable Chhotey Lal Nor Constable Iqbal Ahmad Were Examined. It Was Therefore, Prayed, Through Application, Annexure No.1, That Unless I.O. Is Re Summoned And Re-examined, Principles Of Natural Justice Will Be Violated And There Will Be Miscarriage Of Justice.
Learned AGA Argued To The Contrary And Refuted All The Arguments Submitted By The Applicant's Counsel.
I Have Considered The Submissions And Have Perused The Materials Existing On Record.
What Is Perceptibly Clear, From The Preceding Facts, Is That, On Earlier Two Occasions Applicant Desired I.O. To Be Re Summoned And Re- Examined But, On Both Those Occasions, His Efforts Were Fruitless. Same Ground/ Reasons Are Now Harangued Which Were Canvassed On The Earlier Occasions. Neither The Trial Judge Nor This Court Found Any Reason To Subscribe To The View Of The Applicant, And Therefore, On Both The Previous Occasions, Prayer For Re Summoning Of The I.O. Was Rejected. Aforesaid Earlier Two Orders By Trial Court, As Well As Annexure No. 6, An Order Passed By This Bench, Has Attained Finality. Though Power U/s 311 Cr. P.C. Can Be Exercised At Various Stages Of The Trial But That Can Be Done On Subsequent Occasions, Only When There Is Some Change In The Circumstances Of The Trial Necessitating Exercise Of Said Power. Power U/s 311 Cr.P.C. Can Be Wielded At A Later Stage, Once It Has Been Refused At An Earlier Stage, Only When Some Additional Fact Or Additional Material Is Brought Before The Court. On The Same Evidence, For The Same Reason, Without Any Step Further, Repeated Exercise U/s 311 Cr. P.C. Is Neither Sanctified Nor Can Be Permitted To Be Resorted Too. All The Three Applications Moved By The Informant Were Filed After I.O. Was Already Examined And Therefore No New Material Existed On The Record To Reconsider Informant's Prayer At The Later Stage , Once The Same Was Negated Twice On Earlier Occasions. After Depositions Of The I.O. Was Over, Entire Facts And Circumstances Were Known To The Informant. He Could Not Have Bifurcated Various Pleas To Be Taken In Serial Applicants Filed One After Another Seeking Same Relief. This, In My View, Is An Abuse Of The Process Of The Court. If Grounds Are Available On The Record Then Anyone Who Is Aggrieved By The Action Of The Court, Should Take All The Grounds At The Very First Instance. Non Mentioning Of The Available Ground At The First Instance Will Result In Acquiscencing Acquiescing The Said Ground. Neither Accused Nor Prosecution Can Be Allowed To Have Such A Liberty And Come Up To This Court Repeatedly, Time And Again, At Short Intervals, To Raise The Same Prayer For The Same Reasons. Sri L.S. Yadav, Laid Much Emphasis On The Fact That On The Earlier Occasions These Grounds Were Not Taken. This Does Not At All Change The Situation Nor Alter The Law. It Will Be Preposterous To Cogitate That For Fourteen Grounds, A Litigant Is Entitled To Move Fourteen Applications At Short Intervals Seeking The Same Relief. If Such An Exercise Is Permitted, Trial Procedure Will Never Come To An End. I Am Of The View That Such An Exercise Is Malafide, Purposive, Vindictive And Cannot Be Sanctioned.
Turning Towards Annexure No.1,so Far As The Prayer Of Summoning Of Two Constables, Mentioned In Para 12 Of This Annexure Is Concerned, The Same Was Allowed By The Trial Judge, As In It's Opinion, For A Fair Trial, Summoning Of Those Two Constables Was Essential. The Prayer Of Re-summoning Of The I.O. Was Rejected By The Trial Judge And For Good And Sustainable Reasons.
I Slightly Digress At This Juncture To Point Out That Under Section 311 Cr. P.C., What Has Been Engrafted Is The Power Conferred On The Trial Court To Be Exercised During Trial To Secure Ends Of Justice, If Exercise Of Such A Power Is Desirable For A Just Decision Of The Case. It Is For The Trial Judge To Cogitate, Vet And Analyse As To Whether, In A Given Facts And Circumstances, Which Is Peculiar To Each Case, Exercise Of Such Power Under Section 311 Cr.P.C. Is Just And Proper Or Not ? This Court Should Be Slow And Reluctant To Substitute It's Opinion With That Of The Judicial Discretion Vested With The Trial Judge. Lis Does Not End In The Trial Court. There Are Appeal/revision/writ Provided For Against Any Decision Of The Trial Court. It Is Not For The Superior Courts To Intervene In The Trial Procedure At Every Interlocutory Stage And Scuttle The Trial And Delay Dispensation Of Justice. It Is Only In Exceptional Circumstances That The Superior Courts Should Take Recourse To Remedial Action Only When It Finds That If Trial Procedure Is Not Set Right, It Will Result In Miscarriage Of Justice. No Such Case Is Deciphered In The Instant Application. From The Facts Of The Case What Has Been Culled Out Is That It Is A Case Of Circumstantial Evidence. Widow Of The Deceased And Her Alleged Paramour Are Efforted To Be Punished By Resorting To Repeated Exercise, In An Unfair Manner, By Praying The Trial Court To Re-summon The I.O. Resorting To Section 311 Cr.P.C. This Court Cannot Permit Such An Exercise. I Do Not Find Any Illegality In The Impugned Order And Negate The Prayer Of The Applicant For Re-summoning Of The I.O. For The Above Reasons.
Wrapping Up Of The Discussion, In My View, Instant 482 Application Is Meritless And Is Dismissed.

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