The Allahabad High Court has held that where evidence of a witness is essential to just decision of the case then the Trial Court can summon the witness even if evidence of both sides is closed.

The Single Bench of Justice Shekhar Kumar Yadav observed that "…every trial is a voyage in which quest for truth is the goal. The trial court can summon any witness even if evidence of both sides is closed. What is required to be demonstrated is, evidence of such witness is essential to the just decision of the case."

In this case an FIR was lodged against the applicant and 3 others under Section 364 of the Indian Penal Code. It was alleged that the applicant and other accused persons came in a jeep and took away the brother of the informant with them. It was further alleged that the informant's brother was abducted with intention to kill him because of old enmity with one co-accused.

None of the prosecution witnesses were examined and the statement of informant was also not recorded and as such the investigation was transferred to CBCID, Gorakhpur and again transferred to CBCID, Allahabad.

The Investigating Officer, CBCID, Gorakhpur submitted charge sheet against the applicant and other co-accused persons under Sections 302, 364, 201/34 IPC. It was submitted that the trial court proceeded merely on the basis of the previous charge sheets, and did not consider the final report submitted by second Investigating Officer.

During the course of the trial an application under Section 311 Code of Criminal Procedure (CrPc) was filed on behalf of the accused-applicant to produce one Sanjay Rai and Second Investigating Officer H. N. Kanjiya, Inspector CBCID, Allahabad either as defence witness or court witness for the just and proper decision of the trial. However it was rejected by the trial court. Aggrieved by this the accused-applicant moved High Court.

Advocate Bipin Kumar Tripathi appearing for the applicant contended that the examination of the witnesses named in the application filed under Section 311 Cr.P.C. was essential for the just decision of the case. On the other hand Advocate Vijendra Kumar Mishra appearing for the respondent-state argued that the application under Section 311 Cr.P.C. moved by the applicant at the fag end of the trial was a deliberate attempt to delay the conclusion of the trial.

The Court placed reliance on the Supreme Court judgment in the case- State represented by the Deputy Superintendent of Police Vs N. Seenivsagan where the Court had held that if it appeared to the Court that the evidence of a person who was sought to be recalled was essential to the just decision of a case, the Court could do so under Section 311 Cr.P.C.

The Court noted that the determinative factor to invoke the power conferred under Section 311 Cr.P.C should be whether the summoning or recalling of the witness was in fact, essential to the just decision of the case.

The Court also placed reliance on the case of Manju Devi Vs State of Rajasthan (2019) where the Supreme Court had noted that an application under Section 311 Cr.P.C could not be rejected on the sole ground that the case was pending for an inordinate amount of time.

The Court observed that in the present case the additional witness, namely, Sanjay Rai, who claims himself to be an eye witness, sought to be summoned by the applicant, was cited in the list of witness by both the Investigating Officers at the time of filing of the charge sheet and while submitting final report but he was not produced by the prosecution side in the trial proceedings.

The Court further observed that the second Investigating Officer who was the second witness sought to be examined and the additional witness must be examined for arriving at the just decision of the case.

The Court noted that the Trial Court had rejected the application under Section 311 Cr.P.C. without specifying as to why the evidence of witnesses sought to be summoned was not necessary.

"Trial Court appears to have adopted a hyper technical view in rejecting the application, however, what it appears to have ignored is the purpose for which the salutary provisions of Section 311 Cr.P.C. has been incorporated. It has failed to adhere to the well known adage that every trial is a voyage in which quest for truth is the goal", the Court opined.

Therefore the Court directed the Trial Court to fix a date for the examination of the witnesses sought to be summoned by the applicant and further directed the trial court to dispose of the trial within 6 months.

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Allahabad High CourtJustice Shekhar Kumar YadavSection 482 CrPc

Ashish Shaji