G.R. Gulati vs State Of U.P. And Another
2014 Latest Caselaw 2900 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 14
 
Case :- APPLICATION U/S 482 No. - 22944 of 2014
 
Applicant :- G.R. Gulati
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Samit Gopal
 
Counsel for Opposite Party :- Govt .Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

This application under Section 482 Cr.P.C. has been preferred against the order dated 26.5.2014 passed by the Additional Sessions Judge, Court No. 3, Bulandshahr by virtue of which the application moved by the applicants under Section 311 Cr.P.C. was rejected.

Brief facts are that an F.I.R. was lodged against the accused in which the accused G.R. Gulati was named. Investigation was conducted by the local police in this case and the Investigating Officer submitted a charge sheet bearing no. 240 dated 11.6.2004 against the applicant and four other accused persons. Supplementary charge sheet dated 7.8.2004 was submitted against the said accused persons under Section 364, 302, 201 & 120-B I.P.C. Meanwhile, the matter was referred to the C.B.C.I.D. for investigation and after investigation a final report bearing no. 11 of 2005 dated 3.5.2005 was submitted by the Investigating Officer Sri K.P. Singh but the trial court took cognizance upon the charge sheet no. 240 dated 11.6.2004 on 1.7.2004 and further on the supplementary charge sheet no. 240-A dated 7.4.2004 on 9.9.2004. The Investigating Officer of the C.B.C.I.D. submitted final report but the court had already taken cognizance and the accused had also been summoned. The lower court took up the trial and the prosecution evidence was concluded and statement under Section 313 Cr.P.C. of the accused persons was recorded  and the opportunity was given to the accused to produce defence witnesses. The defence submitted the names of  two witnesses to be examined as defence witnesses, namely, Yaduraj Singh, S.O. of the local police and the K.P. Singh the then Investigating Officer of the C.B.C.I.D. In response to the summon issued by the trial court, Sri Yaduraj Singh (D.W.1) appeared and was examined by the trial court. Sri K.P. Singh the then Investigating Officer of the C.B.C.I.D. did not appear and consequently, the defence evidence was closed by the applicant. It will not be out of place to mention here that after the final report was submitted by the C.B.C.I.D., a protest petition was presented against which the accused persons were summoned.

It has been argued before me that the case of the accused is prejudiced if Sri K.P. Singh the then Investigating Officer of the C.B.C.I.D. is not summoned as a witness because an application to this effect was moved before the trial court under Section 311 Cr.P.C. but the trial court was pleased to reject this application, hence, this application.

I have heard the learned A.G.A. appearing for the State and the the counsel for the  applicant and perused the record. 

At the outset the counsel for the applicant has argued that no doubt the power of the court under Section 311 is discretionary but the discretion is to be judicious. Counsel for the applicant placed reliance upon a decision rendered in  the case Iddar  and others Vs. Aabida and another, (2007) 11 Supreme Court Cases 211.  Paragraph 9 of that Judgment reads as under:-

"9. "26. In this context, reference may be made to Section 311 of the Criminal Procedure Code which reads as follows:-

'311. Power to summon material witness, or examine person present.-Any 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 to the just decision of the case.

The Section is manifestly in two parts. Whereas the word used in the first part is 'may', the second part uses 'shall'. In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts."

It has further been argued that the object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311, the significant expression that occurs is 'at any stage of any inquiry or trial or other proceedings under this Code'. It is, however, to be borne in mind that whereas the Section confers a very wide power on the court on summoning  witnesses, the discretion conferred is to be exercised judiciously, as the wider power the greater is the necessity  for application of judicial mind.

"28. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short 'the Evidence Act') are based on this rule. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be 'filling of loopholes'. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the presiding Judge.

29. The object of Section 311 is to bring on record evidence not only from the point of view of the accused and prosecution but also from the point of view of the orderly society. If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross-examination to the complainant."

Thus it is clear that the exercise under Section 311 can only be done if the court thinks that the evidence of a particular witness should be recorded which would be helpful in  just decision of the case.

Perusal of the impugned order shows that the  lower court found that the accused persons are delaying the disposal of the case and have moved this application when the trial had passed partial stage of arguments also. The prompt decision of criminal case is to be commended and encouraged but in reaching at these results, the accused, who are charged with a serious offence, must not be stripped of his valuable right of a fair and impartial trial because it would be negation of concept of due process of law. Regardless of the merits of the case, the court has not only to look into the case of the prosecution but has also to keep in mind the defence version.

Counsel for the applicant has also placed reliance on the case of Godrej Pacific Tech. Limited Vs. Computer Joint India Limited, (2008) 11 Supreme Court Cases 108, in which the nature and scope of Section 311 has been discussed. The facts of this case are different inasmuch as it has been held by the Apex Court  in paragraph 27 of the Judgement as under:-

"27. The object  underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The Section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is 'at any stage of any inquiry or trial or other proceeding under this Code'. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."

Now referring back to the facts of this case, the applicant has himself stated that he had applied to summon Mr. K.P. Singh the then Investigating Officer of the C.B.C.I.D., who had submitted the final report  but later on he himself  did not choose to produce him since he has not appeared in the Court. No party can be allowed to hot and cold. Once the counsel for the applicant decided to make an endorsement in the court that he did not want to produce Mr. K.P. Singh, Investigating Officer of the C.B.C.I.D. who had submitted final report in the matter then what new suddenly happened during the course of arguments which prompted the applicant that he should call Mr. K.P.Singh as a witness. The learned trial court has specifically held that this case is an old case and the accused is delaying the disposal of the case on some ground or the other. As I have said earlier, delay itself is no ground to reject this application but once the final report submitted by Mr. K.P. Singh has been rejected by the court, the evidence collected by Mr. K.P. Singh would be of no avail to the accused and would be used for very limited purpose. Hence, judiciously applying mind also does not warrant summoning of Mr. K.P.Singh the then C.B.C.I.D. Investigating Officer.  I do not think that the order under challenge has prejudiced the accused or  is illegal, hence, I do not find any ground to interfere in this order.

The application under Section 482 Cr.P.C. is dismissed.

The trial court may expedite the trial which shall be concluded within three months.

Let a copy of this order be sent at once to the trial court.

Order Date :- 11.7.2014/Ram Murti