Witnesses In A Criminal Proceeding Can Be Recalled For Re-examination In Matters Only Where It Is Compulsory To Do So For Fair Delivery Of Justice.

CAUSE TITLE:

Ashutosh Yadav V. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another

DATE OF ORDER:

22nd March, 2024

JUDGE(S):

Hon’ble Subhash Vidyarthi J.

PARTIES:

Revisionist: Ashutosh Yadav

Defendant: State of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another

SUBJECT:

The Hon’ble Allahabad High Court, hereinafter referred to as “the Court” or “the High Court”, has dismissed the Criminal Revision Application under section 311 Cr.P.C. and held that a witness could be called for re-examination only in those criminal cases where the judge may think that fair justice will not be provided to the parties if such witness is not called for re-examination. Therefore, it is in those serious matters where the criminal courts can use such power granted under sec 311 Cr.P.C. and not in every case by the mere wish of a litigant.

IMPORTANT PROVISIONS:

The Code of Criminal Procedure, 1973. (Cr.P.C.)

• Section 397: Calling for records to exercise powers of revision – Both the High Court and the Sessions Judge have the power to call and examine the records of a Lower Court situated within its local jurisdiction and can direct orders as it deems fit which includes quashing of Lower Court’s orders sometimes.
• Section 311: Power to summon material witness, or examine person present – This section empowers all the courts of law to summon witnesses or examine any person attending the trial or re-examine any person already examined at any stage of trial, inquiry, or proceeding.

The Hindu Marriage Act, 1955.

• Section 7: Ceremonies for Hindu Marriage – A Hindu marriage commemorates when the customary rites and ceremonies are completed. The marriage is considered complete when the bride and the groom complete the seventh step of saptapadi before the sacred fire.

BRIEF FACTS:

• The applicant herein referred to as the revisionist had initiated a criminal proceeding in the learned Trial Court where P.W. 1 and P.W. 2, father of P.W. 1 had been called as a witness to examine as to whether the ceremony of kanyadan took place during a marriage ceremony.
• As per the records, the marriage was solemnized on 27.02.2015 in accordance with Hindu rites and rituals in which kanyadan is an essential ritual.
• The revisionist filed an application under section 311 of Cr.P.C. where he claimed that the submission by the witness P.W. 1 is different in cross-examination as compared to the examination-in-chief. 
• The revisionist asked for such clarification by re-examination under section 311 of P.W. 1 and P.W. 2.
• An order was passed by the learned Additional Sessions Judge on 06.03.2024 in Sessions Trial No. 183 of 2019. 
• The application under section 311 of Cr.P.C. was rejected by the learned Trial Court vide order dated 06.03.2024.
• The revisionist then approached the Hon’ble High Court at Allahabad filing a revision under section 397 Cr.P.C.  questioning the validity of the order dated 06.03.2024.

QUESTIONS RAISED:

• Whether the ceremony of kanyadan is essential for the solemnization of a Hindu Marriage.
• Whether the ritual of Kanyadan was performed at the time of the marriage ceremony.
• Whether a witness for any criminal cases can be summoned by the court for re-examination under section 311 of Cr.P.C.

ARGUMENTS ADVANCED BY THE REVISIONIST:

• The learned counsel appearing on behalf of the Revisionist argued for the re-examination of P.W.1 AND P.W.2 since the points answered by P.W.1 in examination-in-chief differed from those taken in cross-examination.
• The learned counsel placed his arguments on the validity of the application under section 311 of Cr.P.C. 
• The Revisionist argued that section 311 Cr.P.C. empowers the court to summon any witness in case it is essential for a just decision.
• The Revisionist argued that the aforesaid witnesses are being sought to be examined to prove whether the ceremony of Kanyadan was performed or not.
• The learned counsel for the Revisionist relied on a decision of The Supreme Court in the case of P. SANJEEVA RAO V. STATE OF A.P. [2012(7) SCC 56], in which The Supreme Court had relied upon the judgment of MOHANLAL SHAMJI SONI V. UNION OF INDIA & Anr. [1991 Supp1 SCC 271]. It was held in these two cases that the Criminal Court has ample power to summon any person as a witness and examine them even when the evidence on both sides is closed for fair delivery of Justice depending on the facts and circumstances of each case.

ARGUMENTS ADVANCED BY THE DEFENDANT:

• The learned counsel appearing on behalf of the Defendant argued that discrepancies in the examination and cross-examination of a witness do not give rise to the ground for recalling the witness.
• The learned counsel pointed out section 7 of The Hindu Marriage Act which states that Saptpadi is an essential ceremony for the solemnization of Hindu marriage.
• The Defendant further argued that it is nowhere mentioned in the Act that Kanyadan is an essential ceremony for the legal solemnization of a Hindu marriage. 
• The Defendant pointed out that the examination of whether the ceremony of Kanyadan was performed or not would not be essential for the just decision of the case.

ANALYSIS BY THE COURT:

• At the outset, the Hon’ble Allahabad High Court noted that the Criminal Courts have ample power to summon any witness under section 311 of Cr.P.C. 
• But, such power of The High Court cannot be exercised casually on the mere asking of a litigant and is exercised when it is essential to summon a witness for a just decision of a case.
• The High Court dismissed the Criminal Revision on the grounds of lack of merits.

CONCLUSION:

The Hon’ble High Court of Allahabad held in this case that a witness can be summoned for re-examination only when it is compulsory to do so to deliver fair and equal justice to the parties in dispute. In the present case of dispute, the High Court dismissed the Criminal Revision No. 296 of 2024 on the grounds of lack of merits. The court held that in this case, the fact which is sought to be proved by recall and re-examination of witnesses is not so necessary for the just decision of the case. Thus, there is no illegality on the order of the Trial Court dated 06.03.2024 passed by the learned Additional Sessions Judge, FTC-1, Lucknow.