HIGH COURT OF JUDICATURE AT ALLAHABAD

SITTING AT LUCKNOW

Neutral Citation No. - 2024:AHC-LKO:22401

A.F.R.
Court No. - 27

Case :- APPLICATION U/S 482 No. - 2138 of 2024

Applicant :- Haribhan Singh

Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Home Civil
Secrt. Lko. And Another
Counsel for Applicant :- Amit Kumar Singh,Brijendra Pratap Singh
Counsel for Opposite Party :- G.A.

Hon’ble Subhash Vidyarthi J.

1. Heard Sri Amit Kumar Singh, the learned counsel for the
applicant, Sri Anurag Verma, the learned A.G.A.-I appearing on
behalf of the State and perused the records.

2. By means of the instant application the applicant has

challenged the validity of an order dated 22.12.2023, passed by the
learned Additional District and Sessions Judge/Special Judge, E.C.
Act, Court No.4, Sultanpur in Sessions Trial No.467 of 2016, under
Sections 147, 148, 149, 504, 506, 307, 302 I.P.C. Police Station
Jamo, District Amethi, whereby the application filed by the applicant
and another co-accused Ram Nath Singh under Section 311 Cr.P.C.
for recall of PW-1 for being cross-examined by them has been
rejected.

3. The application under Section 311 Cr.P.C. was filed on the

ground that the accused Deependra Singh was summoned to face trial
under Section 319 Cr.P.C. after PW-1 was reexamined and he was
cross-examined on behalf of the newly added accused Deependra

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Singh. However, other accused person did not cross-examine the said
witness after his recall. It was stated in the application that after a
person is summoned as an accused under Section 319 Cr.P.C. the trial
starts de novo and therefore all the accused persons have the right to
cross-examine him. The learned trial court rejected the application
without taking into consideration the fact that after PW-1 was
examined by the prosecution the counsel for the applicant had cross-
examined him and the record of cross examination runs into 17 pages.
The said witness was cross-examined by other co-accused Ram Nath
Singh also and that cross-examination runs into 7 pages. Deependra
Singh was summoned to face trial under Section 319 Cr.P.C. after
PW-1 had been examined. In these circumstances there is no ground
for recalling the PW-1 for being cross-examined by the accused
person, on whose behalf he has already been cross-examined
extensively.

4. The learned trial court has also taken into consideration the fact
that this court has issued a direction for expeditious disposal of the
trial.

5. The learned counsel for the applicant has relied upon a decision
of Hon’ble Supreme Court in the case of State represented by the
Deputy Superintendent of Police Vs. Tr. N. Seenivasagan: (2021)
14 SCC 1 : 2021 SCC OnLine SC 212, wherein the Hon’ble Supreme
Court has held as under: -

“12. In our view, having due regard to the nature and ambit of
Section 311 of the CrPC, it was appropriate and proper that the
applications filed by the prosecution ought to have been
allowed. Section 311 provides that any court may, at any stage
of any inquiry, trial or other proceedings under CrPC, summon
any person as 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

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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”. The true test, therefore, is whether it appears to the Court
that the evidence of such person who is sought to be recalled is
essential to the just decision of the case.
13. In Manju Devi v. State of Rajasthan [ (2019) 6 SCC 203] , a
two-Judge Bench of this Court noted that 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 : (SCC p. 209, para 13)
“13. … 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”.
Speaking for the Court, Dinesh Maheshwari J. expounded on the
principles underlying Section 311 in the following terms :
“10. It needs hardly any emphasis that the discretionary
powers like those under Section 311 CrPC are essentially
intended to ensure that every necessary and appropriate
measure is taken by the Court to keep the record straight and
to clear any ambiguity insofar as the evidence is concerned
as also to ensure that no prejudice is caused to anyone. The
principles underlying Section 311CrPC and amplitude of the
powers of the court thereunder have been explained by this
Court in several decisions. In Natasha Singh v. CBI [ (2013)
5 SCC 741] , though the application for examination of
witnesses was filed by the accused but, on the principles
relating to the exercise of powers under Section 311, this
Court observed, inter alia, as under :
‘8. Section 311 CrPC empowers the court to summon a
material witness, or to examine a person present at “any
stage” of “any enquiry”, or “trial”, or “any other
proceedings” under CrPC, or to summon any person as a
witness, or to recall and re-examine any person who has
already been examined if his evidence appears to it, to be
essential to the arrival of a just decision of the case.
Undoubtedly, CrPC has conferred a very wide
discretionary power upon the court in this respect, but such

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 a discretion is to be exercised judiciously and not
arbitrarily. The power of the court in this context is very
wide, and in exercise of the same, it may summon any
person as a witness at any stage of the trial, or other
proceedings. The court is competent to exercise such power
even suo motu if no such application has been filed by
either of the parties. However, the court must satisfy itself,
that it was in fact essential to examine such a witness, or to
recall him for further examination in order to arrive at a
just decision of the case.
***
15. The scope and object of the provision is to enable the court
to determine the truth and to render a just decision after
discovering all relevant facts and obtaining proper proof of such
facts, to arrive at a just decision of the case. Power must be
exercised judiciously and not capriciously or arbitrarily, as any
improper or capricious exercise of such power may lead to
undesirable results. An application under Section 311CrPC
must not be allowed only to fill up a lacuna in the case of the
prosecution, or of the defence, or to the disadvantage of the
accused, or to cause serious prejudice to the defence of the
accused, or to give an unfair advantage to the opposite party.
Further, the additional evidence must not be received as a
disguise for retrial, or to change the nature of the case against
either of the parties. Such a power must be exercised, provided
that the evidence that is likely to be tendered by a witness, is
germane to the issue involved. An opportunity of rebuttal
however, must be given to the other party. The power conferred
under Section 311CrPC must therefore, be invoked by the court
only in order to meet the ends of justice, for strong and valid
reasons, and the same must be exercised with great caution and
circumspection. The very use of words such as “any court”, “at
any stage”, or “or any enquiry, trial or other proceedings”,
“any person” and “any such person” clearly spells out that the
provisions of this section have been expressed in the widest
possible terms, and do not limit the discretion of the court in any
way. There is thus no escape if the fresh evidence to be obtained
is essential to the just decision of the case. The determinative
factor should therefore be, whether the summoning/recalling of

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 the said witness is in fact, essential to the just decision of the
case."
(emphasis in original)

6. Per contra, the learned A.G.A.-I has submitted that the PW-1
was recalled for being examined after the witness Deependra Singh
was summoned to face trial under Section 319 Cr.P.C. As per the
provisions contained in Section 319 (4) Cr.P.C. the proceedings can
commence afresh only against the accused who has been summoned
under Section 319 Cr.P.C. and not against all the accused persons. In
these circumstances, only the accused who has been summoned under
Section 319 Cr.P.C. has a right to cross-examine the witness and the
persons who were accused since before and who had already availed
opportunity of cross-examining the witness, have no right to cross-
examine the witness again.

7. Section 319 (4) Cr.P.C. provides as follows: -

“319. Power to proceed against other persons appearing to be

guilty of offence.—(1) Where, in the course of any inquiry into,
or trial of, an offence, it appears from the evidence that any
person not being the accused has committed any offence for
which such person could be tried together with the accused, the
Court may proceed against such person for the offence which he
appears to have committed.
(2) Where such person is not attending the Court, he may be
arrested or summoned, as the circumstances of the case may
require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or
upon a summons, may be detained by such Court for the
purpose of the inquiry into, or trial of, the offence which he
appears to have committed.
(4) Where the Court proceeds against any person under sub-
section (1) then—

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 (a) the proceedings in respect of such person shall be
commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed
as if such person had been an accused person when the Court
took cognizance of the offence upon which the inquiry or trial
was commenced.”

8. A bare reading of Section 319 (4) Cr.P.C. indicates that where

a person is summoned under Section 319 (1) to face the trial, the
proceedings shall be commenced afresh and the witnesses re-heard
only in respect of such person and not in respect of all the accused
persons. Therefore, the applicant having been an accused since
inception of the tiral and he already having cross examined the
witness PW-1, he has no right to recall PW-1 for cross examining
him again after he was re-examined by the prosecution consequent to
another accused being summoned under Section 319 Cr.P.C.

9. Although, it is correct that Section 311 Cr.P.C. confers wide

powers on the court to summon any witness at any stage of the
enquiry, trial or other proceeding but that power has to be exercised
only when it is essential for just decision of the case.

10. In these circumstances, the applicant has no right to seek

further cross-examination of PW-1 and such cross-examination is not
at all essential for just decision of the case. There appears to be no
illegality in the impugned order. The application lacks merit and the
same is accordingly dismissed.

(Subhash Vidyarthi, J.)

Order Date: 14.03.2024

Ram.

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Digitally signed by :-
RAM SINGH
High Court of Judicature at Allahabad,
Lucknow Bench