Bhanu Pratap Singh vs State of U.P. and Others

Hon''ble Bala Krishna Narayana, J.—Heard Sri Dilip Kumar for the applicant and learned A.G.A. for the State.

From the facts brought on record, it appears that on the basis of the FIR lodged by the applicant Case Crime No. 860 of 2008, u/s 302 IPC, was registered at P.S. Nagar, District Basti against unknown persons. After completion of the investigation, charge sheet was submitted against opposite party nos. 2 to 4 and the case was committed to trial by the learned Additional Sessions Judge, Basti and registered as S.T. No. 181 of 2008. During the course of trial on the applicant''s prayer the learned Additional Sessions Judge directed further investigation in the matter in which the complicity of four other persons namely, Om Prakash, Ram Jeet Singh, Jai Prakash Singh and Vinod Singh came to light on the basis of the evidence of Smt. Malti Singh, Balmiki Singh, Km Shraddha Singh, Km. Seema Singh alias Monu, Sardar Bhagat Singh alias Daddu Singh, Rinku Singh alias Raghvendra Singh and Balvant Singh, however, they were not charge sheeted. The applicant moved an application u/s 311 of the Code of Criminal Procedure (in short "the Code") with a prayer that Smt. Malti Singh, Balmiki Singh, Km Shraddha Singh, Km. Seema Singh alias Monu, Sardar Bhagat Singh alias Daddu Singh, Rinku Singh alias Raghvendra Singh and Balvant Singh be summoned as witnesses and examined so that the complicity of Om Prakash, Ram Jeet Singh, Jai Prakash Singh and Vinod Singh in the commission of the offence be established and they be summoned as additional accused u/s 319 of the Code.

The learned Additional Sessions Judge by the impugned order dated 03.11.2011 has rejected the application of the applicant only on the ground of delay.

Learned counsel for the applicant submitted that u/s 311 of the Code, a court may at any stage of any inquiry, trial or other proceeding under this Code, 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 examine or recall and re-examine any such person if his evidence appears to it to be essential for a just and expedient decision of the case.

He further submitted that power section 311 of the Code is to be exercised judiciously and not arbitrarily.

Per contra learned A.G.A. made his submissions in support of the impugned order.

After having heard the learned counsel for the parties present and perused the impugned order as well as the other materials brought on record, I find that there is force in the submissions made by the learned counsel for the applicant and the same are liable to be accepted.

The impugned order in my opinion cannot be sustained for the reason that the learned Additional Sessions Judge, did make any endeavor to examine or scrutinize whether the evidence of the persons sought to be summoned was essential for a just and expedient decision in the case or not. The rejection of the application u/s 311 of the Code moved by the applicant on the ground mentioned in the impugned order cannot be sustained.

Accordingly, this application is allowed. The order dated 03.11.2011 passed by Additional Sessions Judge, Court No.8, Basti is hereby set aside and the matter is remitted back to him with the direction to him to pass a fresh order on the application of the applicant u/s 311 of the Code in accordance with law and keeping in view the parameters of Section 311 Code within a period of two weeks from the date of production of certified copy of this order.