{"id":74189,"date":"1998-07-22T00:00:00","date_gmt":"1998-07-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/devinder-singh-vs-state-on-22-july-1998"},"modified":"2017-03-14T23:20:53","modified_gmt":"2017-03-14T17:50:53","slug":"devinder-singh-vs-state-on-22-july-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/devinder-singh-vs-state-on-22-july-1998","title":{"rendered":"Devinder Singh vs State on 22 July, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Devinder Singh vs State on 22 July, 1998<\/div>\n
Equivalent citations: 1998 VAD Delhi 202, 74 (1998) DLT 501, 1998 (46) DRJ 762<\/div>\n
Author: J.B.Goel<\/div>\n
Bench: J Goel<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 J.B.Goel, J.<\/p>\n
 1.This is a petition under Section 482 of the Code of Criminal Procedure (the  Code)  challenging  the  legality and validity  of  the  order  dated 4.4.1998  &  18.4.1998 passed by the trial court whereby  the  applications under  Section 311 of the Code filed by the petitioner and his  two  co-accused for recalling some prosecution witnesses have been dismissed.\n<\/p>\n
 2.  Similar  application dated 1.2.1997 filed by the accused  persons  was earlier dismissed on 17.4.97. That order was not challenged.\n<\/p>\n
 3.   The  petitioner  Devinder and co-accused Vijendar  have  been  charged under  Section 506\/34 IPC and co-accused Surinder Singh and Devinder  Singh have been charged under Section 376 IPC also. The prosecutrix Kumari  Meena aged 12 years has alleged in her first information complaint that on 3.1.87 at  about 5.00 p.m. she had gone to fetch water from a tubewell. While  she was filling the pitcher and was alone accused Surinder gagged her mouth and the  three  accused forcibly took her to nearby jungle where  Surinder  and Devinder one after the other raped her and they and the co-accused Vijendar who  remained  present had extended threats of killing her  if  she  raised alarm  or informed any person thereafter. On return to her home,  she  told the  incident  to her mother, at that time her father was not at  home  and when  he  came home the incident was also narrated to him. Police  was  informed;  the prosecutrix lodged a report of the incident with one ASI.  FIR was registered in the night itself. She was medically examined. Her clothes were  seized. The three accused were arrested. Medical report as also  CFSL report  suggested  that rape had been committed.  After  investigation  the three accused have been put to trial. During trial the prosecutrix as  PW-1 and  her parents as PW-3 and PW-4 deposed supporting the prosecution  case. Statement  of  the prosecutrix recorded under Section 164 of the  Code  was proved by the Magistrate as PW-2. Some police officials who had joined  the investigation  were  also examined. Statements of the accused  persons  were recorded under Section 313 Cr.P.C.\n<\/p>\n
 4.   The  accused also examined three witnesses in defense.  Thereafter  on the application of the Prosecution under Section 311 of the Code five  more witnesses  were  examined. The accused also further examined  DW-4  Mukesh, brother of the prosecutrix who proved a letter alleged to have been written at  the instance of the prosecutrix denying that the occurrence  had  taken place.  Affidavits of prosecutrix and her father in support of  the  letter have also been filed. Thereafter, the present application under Section 311 of the Code was filed seeking recalling for cross-examination of the prosecutrix  and her parents on the ground that the prosecutrix has  now  denied that  the  occurrence of rape had at all taken place and her  complaint  is motivated. As already noticed another application under Section 311 Cr.P.C. dated 1.2.97 was dismissed by the trial court on 17.4.97 but that order was not challenged in revision or by any other proceedings. The second application has also been disallowed by the learned trial court on 4.4.98.\n<\/p>\n
 5.   Learned  counsel  for the petitioner has contended  that  the  learned trial court has acted illegally and to the great prejudice of the petitioner  in  disallowing the application as in the facts and  circumstances  the witnesses ought to have been summoned which was in the interest of  justice and  for a just decision of the case. He has placed reliance on Mohd.  Hussain  Umar Kochra etc. Vs. K.S. Dalipsinghji and another , Deepak  Tandon  Vs.  State , State  Vs.  Ramesh  @ Ramesh Kumar, (1990) 1 C.C. Cases 444 (Delhi) and also relying on  Mohanlal Shamji Soni Vs. Union of India & Anr. 1991 SCC (Cri) 595 has contended that this also support the petitioner. Whereas learned counsel for the State has supported  the  impugned  order and has contended that there  is  no  valid ground  to  recall and re-examine the witnesses as  obviously  the  accused persons have tampered with the evidence and won over the witnesses to  back out  now  request for recalling the witnesses is not bonafide  nor  in  the interest  of justice but to subvert the administration of justice. He  also contends  that first application was dismissed on 17.4.1997 and that  order was  not  challenged  and no new ground exists to re-agitate  the  same  so belatedly; that successive applications seeking the same relief is misuse of the process of the court and to delay the trial. He also contends that  the trial court has rightly held that it is required for a just decision of the case.\n<\/p>\n
      The provisions of Section 311 are identical to those of Section 540 of the  old Code except that the words ‘to be’ have been inserted  before  the word  ‘essential’ which has not made any change in the scope of the  provision. Section 540 has been the subject matter of consideration in a  number of  cases by the Hon’ble Supreme Court which have been referred to  in  the case of Mohanlal Shamji Soni (supra) where case law both Indian and English has been referred to.\n<\/p>\n
 6.   There it has been held that :\n<\/p>\n
      “This  Section is manifestly in two parts. Whereas the word  used      in  the first part is ‘may’ the word used in the second  part  is      `shall’. In consequence, the first part which is permissive gives      purely discretionary authority to the Criminal Court and  enables      it  `at any stage of enquiry, trial or other  proceedings’  under      the Code to act in one of the three ways, namely,<\/p>\n
      (1) to summon any person as a witness, or <\/p>\n
      (2) to examine any person in attendance, though not summoned as a      witness, or <\/p>\n
      (3) to recall and re-examine any person already examined.\n<\/p><\/blockquote>\n
      The  second part which is mandatory imposes an obligation on  the      court -\n \n\n\n  \n\n      (1) to summon and examine, or  \n \n\n\n \n\n      (2)  to  recall and re-examine any such person  if  his  evidence      appears to be essential to the just decision of the case.\n \n\n\n \n\n 7.   It has further been emphasised that: \n \n\n\n        \"...  This section is expressed in the widest possible terms  and      do not limit the discretion of the court in any way. However, the      very width requires a corresponding caution that the  discretionary power should be invoked as the exigencies of justice  require      and  exercised  judicially with circumspection  and  consistently      with  the provisions of the Code. The second part, on  the  other      hand,  is not discretionary and compels the court to take any  of      the aforementioned two steps if the fresh evidence to be obtained      is essential to the just decision of the case. \n \n\n      It  is further observed that Section 540 does not give carte  blanche, unguided, uncontrolled and uncanalised power and the power under it must be used judicially and not capriciously or arbitrarily and \n \n\n\n   \"Further  it  is incumbent that due care should be taken  by  the      court while exercising the power under this section and it should      not be used for filling up the lacuna left by the prosecution  or      by the defense or to the disadvantage of the accused or to  cause      serious  prejudice  to the defense of the accused or to  give  an      unfair  advantage  to the rival side and further  the  additional      evidence should not be received as a disguise for a retrial or to      change the nature of the case against either of the parties.\" \n \n\n      After  referring to case law having bearing on the aspect, in  conclusion, it has been laid down that :\n \n\n\n       \"27.  The principle of law that emerges from the views  expressed      by  this Court in the above decisions is that the criminal  court      has  ample power to summon any person as a witness or recall  and      re-examine any such person even if the evidence on both sides  is      closed  and the jurisdiction of the court must obviously be  dictated by exigency of the situation, and fair play and good  sense      appear to be the only safe guides and that only the  requirements      of  justice  command the examination of any  person  which  would      depend on the facts and circumstances of each case.\" \n \n\n<\/pre>\n
 8.   The  first question is whether the second application is  maintainable when  the first application was dismissed on 17.4.1997 and that  order  was not challenged. It is not disputed that similar prayer was made earlier and was  disallowed  on  17.4.97 and that order was  not  challenged.  However, learned counsel for the petitioner has contended that after that order  was passed  further  material has been brought on record;  namely  that  letter dated 5.2.1997 has been proved by her brother as DW-4 and also the prosecutrix  and her father have also produced their two affidavits in support  of that statement.\n<\/p><\/blockquote>\n
 9.   Basically,  the petitioner basis its claim on the letter dated  5.2.97 (Now.  Ex. DW1\/A). This material was available earlier also. The  statement of the brother or the two affidavits of the prosecutrix and her father  are only  in support of this, which do not constitute new ground  or  material. These could have been obtained earlier. The fact remains that the petitioner seeks recalling of the prosecution witnesses to retract their  Statements made earlier. There is no change in circumstances. This second  application in  my  view  was not maintainable and is a misuse of the  process  of  the Court.\n<\/p>\n
 10.  I have gone through the statements made by the prosecutrix, her father and  mother  (as PWs 1, 3 and 4) as well as the statements of  the  accused persons.  Suggestions had been put to the prosecutrix that such  occurrence had not taken place and that two of the accused Surinder Singh and Devinder singh had not committed rape nor the accused persons had forcibly taken her away, to which she denied. A suggestion had also been put to her that there was  a dispute between her father and uncle on the one hand and the  father of  the  accused Surinder and also enmity with parents of Vijendar  on  the other  hand  and  that the accused had been falsely  implicated  which  she denied.  She had also denied that this was a false case lodged  after  consulting  the baradari. No evidence of such enmity or hostility between  the family of the prosecutrix or with any particular person of the baradari with any  of  the accused has been led by the accused  persons.  Apparently  the prosecutrix and her parents appear to have been won over either for consideration or under some threat or otherwise after the case had been prolonged for about 10 years.\n<\/p>\n
      Strong  reliance  has been placed on the case of  Mohd.  Hussain  Umar Kochra   where rejecting the request for  recalling  of  the witness,  it  was observed by the Hon’ble Supreme Court that there  was  no affidavit from Ali nor was there any other material showing that his testimony  was  incorrect in any material particular. Here also  except  stating that  no such incident had taken place and that the earlier  statement  was made  by  her  at the instance of the baradari who had  colluded  with  the police,  no material has been placed on the record as to who were the  members of that baradari; why the baradari may have colluded with the prosecutrix and her parents to involve the 3 accused in a false serious offence of rape.  Exercise  of power under Section 311 will depend on  the  facts  and circumstances of each case. As noticed earlier the accused themselves  have not led any such evidence of enmity either between the family of the prosecutrix  or any persons of the baradari on the one hand and the families  of the accused on the other hand. In the absence of such relevant material  it cannot  be  said that there is any material showing that the  testimony  of these witnesses is incorrect necessitating re-summoning the said witnesses. It  thus cannot be said that recalling of these witnesses is necessary  for the decision of the case in a just manner or is necessitated by  exigencies of situation or on the grounds of fair play and good sense. No party can be allowed  to misuse the process of the Court by adopting dubious modes.  The salutary  power under Section 311 can be exercised to subserve justice  and not to subvert the administration of justice.\n<\/p>\n
 11.  In  the circumstances it cannot be said that the exercise of power  by the  Court under Section 311 of the Code is necessary or justified  on  the spacious  ground of a just decision of the case. It cannot be said  that  a just decision cannot be given on the material already on record.\n<\/p>\n
 12.  In  view  of  the above discussion, I do not find  any  illegality  or impropriety or infirmity in the orders dated 4.4.1998 & 18.4.1998 passed by the  learned trial court rejecting the applications of the  petitioner.  No interference  with the impugned orders is called for. This petition has  no merit and the same is hereby dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Devinder Singh vs State on 22 July, 1998 Equivalent citations: 1998 VAD Delhi 202, 74 (1998) DLT 501, 1998 (46) DRJ 762 Author: J.B.Goel Bench: J Goel ORDER J.B.Goel, J. 1.This is a petition under Section 482 of the Code of Criminal Procedure (the Code) challenging the legality and validity of the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-74189","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nDevinder Singh vs State on 22 July, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/devinder-singh-vs-state-on-22-july-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Devinder Singh vs State on 22 July, 1998 - 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