Omkar Lal vs State Of U.P. & Others
2014 Latest Caselaw 7610 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. 57
 
Reserved on 29.08.2014
 
   Delivered on 16.10.2014
 

 
Case :- CRIMINAL REVISION No. - 1065 of 2008
 

 
Revisionist :- Omkar Lal
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Revisionist :- Brijesh Sahai,Sharad Srivastava
 
Counsel for Opposite Party :- Govt. Advocate,Anant Vijay
 
					
 
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Hon'ble Shashi Kant, J.

(1) This criminal revision has been preferred under section 397 and 401 Criminal Procedure Code, 1973 (in short Cr.P.C.) against the order dated 13.03.2008 passed by learned Chief Judicial Magistrate, Ghazipur, in Criminal Case No. 5049 of 2006, under Sections 419, 420, 467 and 120-B Indian Penal Code (in short I.P.C.), P.S. Jangipur, District Ghazipur whereby learned Magistrate has recalled the order dated 30.1.2008 passed by him.

(2) Brief facts relating to this revision are as follows :-

(i) Criminal complaint case no. 1086 of 1996, under Sections 419, 420, 467 and 120-B I.P.C., P.S. Jangipur, District Ghazipur has been filed by one Sri Chandra Dev on 10.12.1996, which was registered on the same day.

(ii) On 1.1.1997 revisionist accused persons have been summoned to face their trial under Sections 419, 420, 467 and 120-B IPC, fixing 25.9.1997 for further orders.

(iii) Revisionist opposite parties have filed an application for setting aside the summoning order dated 17.9.1997 which was allowed vide order dated 14.5.1998 and summoning order dated 17.9.1997 has been set aside.

(iv) Against the order dated 14.05.1998, criminal revision no. 180 of 1998 has been filed before the Sessions Judge, Ghazipur which was allowed vide order dated 26.7.2004, passed by first Additional Sessions Judge, Ghazipur.

(v) Against aforementioned order passed by first Additional Session Judge, Ghazipur, revisionists accused persons have filed a petition no. 1065 of 2008 (Omkar Lal vs. State of U.P. and others) under section 482 Cr.P.C. which was disposed of vide order dated 1.12.2005 whereby learned trial court was directed to conclude the trial expeditiously.

(vi) March, 10th 2006 was fixed for evidence under Section 244 Cr.P.C., subsequent to that so many dates have been fixed for above purpose but no evidence has been produced by the complainant and ultimately on 30.01.2008 order was passed for closing of evidence under Section 244 Cr.P.C.

(vii) On the same day i.e. 30.01.2008 application 76-B has been filed by the opposite party no.2 for providing opportunity of evidence, against which objection 78-B has been filed. After hearing the parties on the application and objection, application 76-B was allowed vide impugned order dated 13.03.2008.

(3) Hence this revision.

(4) Heard learned counsel for the revisionist, learned A.G.A. for the State of U.P. and perused the record.

(5) Having heard learned counsel for the parties, following question emerges to decide controversy involved in this criminal revision: -

As to whether impugned order is justified and legally sustainable in the facts and circumstances of the present case ?.

(6) Learned counsel for the revisionist has submitted that impugned order has been passed by ignoring the facts and law involved in the case and without application of judicial mind. He has also submitted that Impugned order is contrary to the provisions of section 362 Cr.P.C. and has been passed without powers to do so. As such impugned order passed by the learned trial court is unfair, illegal and is not sustainable in the eyes of law.

(6-1) In support of his contention to the effect that under Section 362 Cr.P.C. after signing its judgement and final order disposing of a case, no court alter or review the same except to correct a clerical and arithmetical error, learned counsel for the revisionist has placed his reliance on the case of Devendra Kishan Lal Dogalia vs. Dwarkesh Diamonds Private Limited and others, reported in (2012) 1 SCC (Crl.) 800 and on the case of Adalat Prasad vs. Rooplal Jindal reported in 2004 SCC (Crl.) 1927. In these cases, Apex Court has held that learned Magistrate has no jurisdiction to recall the summons issued against the accused. It may be noted here that though in the reported decision of Devendra Kishan Lal Dogalia vs. Dwarkesh Diamonds Private Limited (supra) at two places section 362 Cr.P.C. has been referred in the Head Notes but there is no discussion or reference of section 362 Cr.P.C. in the decision itself. They are also on the other point i.e. about no jurisdiction of Magistrate to recall the summons issued against the accused. As such, both the above decisions are not come for rescue to the learned counsel for the revisionist, on the point which they are relied. It may also be noted here that section 362 Cr.P.C. provides that after signing its judgement and final order disposing of a case, no court alter or review the same except to correct a clerical and arithmetical error. But order under revision does not come in the ambit and purview of section 362 Cr.P.C., as it is neither judgement nor final order disposing of a case.

(6-2) Learned counsel for the revisionist has also placed reliance on the cases of Rajaram Prasad Yadav v. State of Bihar and another, reported in 2013 () JIC 657 (SC) and Natasa Singh v. CBI (State), reported in 2013 (3) JIC 312. In both the cases, the Apex Court has considered the scope of section 311 Cr.P.C. and held that Section 311 Cr.P.C. empowers the Court to summon a material witness, or to examine a person present at "any state" of "any enquiry", or "trial" or "any other proceedings" under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it to be essential to the arrival of a just decsion of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the Court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the Court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The Court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the Court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a justice decision of the case and it should not be permitted for filling lacuna of the prosecution case.

(7) Contrary to the submission of learned counsel for the revisionist, learned A.G.A. has defended the impugned order by submitting that it is perfectly justified that there is no irregularity or illegality in it and no interference is required by this Court, in the impugned order in exercise of its revisional jurisdiction.

(8) Prior to proceed further, it will be expedient to go through the relevant provisions i.e. Sections 244, 311, 362 Cr.P.C. which run as follows :

"Section 244 Cr.P.C. - Evidence for prosecution :

(1)When, in any warrant-case instituted otherwise than on a plice report the accused appears to is brought before a Magistrate, the Magistrate shall proceed or hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2)The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."

"Section 311 Cr.P.C.- Power to summon material witness, or examine person present :

Any Court may, at any stage or 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."

"Section 362 Cr.P.C. -Court not to alter judgement-

Save as otherwise provided by this Code or by any other law for the time being in force, no Court when it has signed its judgement or final order disposing of a case, alter or review the same except to correct a clerical or arithmetical error."

(9) Considering the scope and powers of section 540 of old Cr.P.C. (corresponding section 311 of Cr.P.C., 1973) in the case of Mukti Kumar Ghosh vs. State of West Bengal reported in 1975 Cri. L.J. 838, wherein Calcutta High Court has held that :

"Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The fist part gives a discretionary power but the latter part is mandatory. The use of the word 'may' is the first pat and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the Court may act in one of three ways, (a) summon any person as a witness (b) examine any person present in court although not summoned, and recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decisions of the case, does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly.

Ordinarily, a Court my intervene under Section 540 after close of evidence, and not before that, for it may not be possible for the court to form a bona fide opinion as to the necessity of calling a witness before evidence is closed on the side of the prosecution at least. There is nothing, however, in the language of Section 540 to say that the court cannot make an order under Section 540 even before the prosecution evidence is closed. But a witness, whose examination, cross-examination and re-examination is not over, i.e. a witness not discharged after full examination, cannot be called under Section 540, whatever the stage. In such a situation, the court may, however, act under Section 165 of the Indian Evidence Act, if necessity, for ends of justice, arises. This disposes of all the contentions made in this case."

(10) While considering the scope and powers of section 254 of old Cr.P.C. (corresponding section 244 of Cr.P.C., 1973) in the Case of Smt. Yashodabai Keshav Thakur Desai, vs. Bhaskar Moreshwar Kamal and another reported in 1973 Cri. L.J. 1007, Bombay High Court has held that :

"Under Section 252 (1) of the Cr.P.C. the Magistrate shall proceed to hear the complainant and take all the evidence as will be produced. Before closing the evidence before charge, in my view, it was necessary for the Magistrate to ask the complainant if she wanted more of her witnesses to supprt her complaint. Because the complainant did not keep all the witnesses. The record, therefore, clearly shows that the learned Magistrate has also not complied with the requirement of Section 252 (1) of the Criminal Procedure Code."

(11) Considering the difference between recalling, altering and reviewing judgement, the Apex Court in the Case of State of Punjab vs. Davinder Pal Singh Bhullar & Ors. With Sumedh Singh Saini vs. Davinder Singh & Ors reported in 2012 (1) JIC 833. has held that :

"The power of recall is different from the power of altering/reviewing the judgement. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide Chintawan & Ors. v. Mahboob Llahi, 1970 Crl.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra & Anr. 1985 Crl. L.J.23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth Mahto & Anr. v. Dharmdeo Narain Singh, AIR 1972 SC 1300; Makkapati Nagaswara Sastri v. S.S. Satyanarayan, AIR 1981 SC 1156, Asit Kumar Kar v. State of West Bengal & Ors., JT 2009 (1) SC 654 :2009 (2) SCC 703; and Vishnu Agarwal v. State of U.P. & Anr., 2011 (2) JIC 649 (SC) : AIR 2011 SC 1232)."

(12) In the case of Rupa Ashok Hurra v. Ashok Hurra reported in 2002 (4) SCC 388, after considering the distinction between petition under article 32 review petition and recall petition, the Apex Court has held that :

"There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengel Licensees Association v. Raghabendra Singh and Ors. (2007 (11) SCC 374) cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences."

(13) It is clear from the perusal of the record that in the application 76- B given for providing an opportunity to produce evidence under Section 244 Cr.P.C., it is mentioned that on the day concerned, after call of the case, pairokar of the case went to call his counsel, he was busy in the Fast Track Court, after sometime when he reached in the Court then came to know that opportunity to produce evidence under Section 244 Cr.P.C. has been closed and case was fixed on 13.3.2008 for further orders. It is also stated in the application that the applicant has not committed any mistake knowingly, he has to produce evidence, he has also filed application for summoning of some important documents on which order for summoning them has been passed on 23.8.2007, he has also deposited court fees for summoning the required documents. It appears that no summoning order for those papers have been issued from the office of the Court. It is expedient in the interest of justice to provide him opportunity for producing evidence under Section 244 Cr.P.C. as well as summoning of required documents. He has deposited required Court fees for summoning of the documents.

(14) While it is stated in the objection 78-B, filed against the above application that the case was fixed for producing the evidence under Section 244 Cr.P.C. from 07.02.2006 to 30.01.2008. As such, sufficient opportunity for producing evidence under Section 244 Cr.P.C. has been given to the complainant but no evidence has been produced, by the complainant. In Misc. Application under Section 482 Cr.P.C. No. 7514 of 2004 (Omkar Lal vs. State of U.P. and others), order for expeditious disposal of the complaint case has been passed on 1.12.2005. It is also stated in the objection that an opportunity for producing evidence under Section 244 Cr.P.C. has been closed on 30.1.2008 and case has been fixed for section 245 Cr.P.C. In such circumstances, without rejection of the order dated 30.1.2008, opportunity for producing evidence under Section 244 Cr.P.C. could not be provided. It is stated that the applicant complainant want to get rejection of the order dated 30.1.2008 indirectly, through application 76-B, because according to law, no Court can review or reject earlier order passed by it. Due to this, no prayer for rejection of the order dated 30.1.2008 has been made in the application 76-B.

(15) These facts of the application are neither challenged in the objection 78-B nor in the impugned order itself that applicant has not committed any mistake knowingly, he has to produce evidence, he has also filed application for summoning of some important documents on which order for summoning them has been passed on 23.8.2007, he has also deposited court fees for summoning the required documents. It appears that no summoning order for those papers have been issued from the office of the Court. In the above facts and circumstances, pirokar of the complainant could not be blamed for not producing any evidence under section 244 Cr.P.C. without any fault on his part. It is obviously needed and expedient in the interest of justice to provide an opportunity for producing evidence under section 244 Cr.P.C. to the pirokar of the complainant because in the situation of total lack of evidence under section 244 Cr.P.C., lower court would not be in a position to reach on the just decision of the case.

(16) In the impugned order, the learned Trial Court has recorded finding to the effect that assertions of the complaint to the effect that he has gone to call his counsel and opportunity for producing evidence under Section 244 Cr.P.C. has been closed before his return. On 30.1.2008 the date was fixed and complainant has gone to call his counsel and he were not returned back after a long time, then his opportunity for providing evidence under Section 244 Cr.P.C. has been closed. This finding of the learned Trial Court does not find support from the evidence and material available on record or from the order itself because there is no mention in the order that at what time case was called out and complainant has gone to call his counsel and on what time the complainant has returned back along with his counsel or what particular time, opportunity for producing evidence under Section 244 Cr.P.C. has been closed. This is an admitted position that application 76-B for producing evidence under Section 244 Cr.P.C. has been moved on the very same day, which indicates that order for closing evidence has been passed in some earlier hours of the day. Order for closing evidence is neither judgement nor final order. As such, it was always open for the Court to recall it in the appropriate circumstances as in the present case, but probably keeping view of the objection about no right for review or setting aside its earlier order, the learned Trial Court has opted the recourse of section 311 Cr.P.C. for providing an opportunity to produce evidence under Section 244 Cr.P.C., to the complainant

(17) As may be seen from the above referred provisions of section 311 Cr.P.C. that any Court may, at any stage or 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 the just decision of the case. As in this case on 13.03.2008 was fixed for proceeding under Section 245 Cr.P.C. which is related to discharge of the accused persons from the case, once the accused persons discharged from the case, then after that there was no occasion for the trial Court to exercise of the powers vested in Section 311 Cr.P.C.. Therefore, exercise of its powers vested in it by provisions of section 311 Cr.P.C. by the learned lower court appears to be fully justified, in the facts and circumstances of the case.

(18) Otherwise also looking to the nature of impugned order, this Court is of the considered view that it is a recalling order and is not the reviewing or altering order. Application 76-B has been allowed subject to payment of cost of Rs. 100/-. In the light of the above discussion, I am of the opinion that by the impugned order substantial justice has been done between the parties and there is no illegality, irregularity and infirmity in it and the impugned order does not require any interference by this Court.

(19) In view of the peculiar facts of the matter that criminal complaint case in which impugned order has been passed was filed about 28 years ago in the year of 1996, pairokar of the present case for complainant relates to the third generation of the original complainant and vide order dated 01.12.2005 passed in Petition No. 1065 of 2008 (Omkar Lal v. State of U.P. And Others) under Section 482 Cr.P.C. for expeditious disposal of the case was directed but the factual position is that till this time, no evidence under Section 244 Cr.P.C. has been produced which is a matter of serious concern and requires appropriate directions in the matter which are as follows:

(i) Revisionist and complainant opposite party no. 2 are directed to appear before the learned lower Court on 15.12.2014 and extend their full cooperation in expeditious disposal of the case, they will not take any unnecessary adjournment.

(ii) Learned trial Court will make each and every endeavour to early disposal of the case, if possible, within six months from 15.12.2014. Learned trial court will also take care that no unnecessary adjournments may be granted to the parties and if adjournment is inevitable due to compelling reason, then it should be only on appropriate terms and for short period.

(20) For the facts and reasons recorded above, this revision is devoid of merits and is liable to be dismissed.

(21) The revision is accordingly dismissed.

(22) Let the record of the lower court be returned back immediately.

Date : .16.10.2014

Monika

Criminal Revision No. 1065 of 2008.