Abdul Sattar vs State Of U.P. Thru ...
2015 Latest Caselaw 2262 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 17
 

 
Case :- MISC. SINGLE No. - 4623 of 2015
 

 
Petitioner :- Abdul Sattar
 
Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Home Civil Sectt.&Ors.
 
Counsel for Petitioner :- Maheshwari Pandey,Sanjeev Pandey
 
Counsel for Respondent :- Govt. Advocate,Nitin Srivastava
 

 
Hon'ble Pratyush Kumar,J.

Heard learned counsel for the petitioner, learned Standing Counsel for the State and Sri Nitin Srivastava, learned counsel appearing for opposite party no. 4 and perused the record.

The present writ petition has been filed by the accused/petitioner with the prayer to issue a writ, order or direction in the nature of certiorari thereby quashing the impugned orders dated 19th February, 2015 and 20th July, 2015 passed by Chief Judicial Magistrate, Gonda and Additional Sessions Judge (Fast Track Court No.1) Gonda, District Gonda, respectively.

The facts giving rise to the present writ petition may be briefly summarized below :-

Late Bhanu @ Sanuallah was owner of agricultural land and residential house. He died on 7th October, 2009 leaving behind him his wife Nasibunnisha, whose name was entered in the revenue records by way of inheritance (Pa.Ka.11). Smt. Nasibnnisha Nisha executed two sale deeds dated 27th August, 2012 in favour of Abdul Khalik and Smt. Shahajahan, wife of Abdul Khalik and Sajiha Begum. She again executed two sale deeds dated 26th October, 2013 in favour of Abdul Lateef on 6th September, 2012. Case Crime No.133-C of 2012, under Sections 419, 420, 467, 468, 471 I.P.C., Police Station Khodare, District Gonda, was registered on the application of Smt. Nasibunnisha, moved under Section 156(3) Cr.P.C., wherein she had arrayed the present petitioner along with five other as accused, complaining that the accused persons in order to dishonestly grab her property left by her deceased husband, had prepared a forged and fictitious will ante-dated as 26th September, 2009 and registered on 31st December, 2009. On 20th June, 2012, she came to know about the forged and fictitious will, she approached the concerned police station when her F.I.R. was not lodged, she moved the requisite application before the competent magistrate having the jurisdiction.

After investigation, the police submitted chargesheet against four accused persons including the present petitioner and against two remaining accused chargesheet was not submitted. The magistrate after taking cognizance framed charges and examined Smt. Nasibunnisha as P.W.-1. On 12th February, 2015 her statement was completed.

On 20.01.2015, opposite party no. 4-Abdul Khalik moved an application under Section 311 Cr.P.C. with the prayer to summon 8 witnesses whose names and description were given at the foot of the application. After referring the aforementioned sale deeds and litigation pending between the parties, the opposite party no. 4 has stated therein that the present petitioner is the real brother-in-law of Smt. Nasibunnisha and one of the daughter of Late Bhanu @ Sanaullah has been married with the son of the present petitioner. Due to this relationship Smt. Nasibunnisha has come under the influence of the accused persons and in order to save the accused, she had not given truthful account of the occurrence. The witnesses whose names find place at the foot of the application, have knowledge about the occurrence, they be summoned and examined.

Against this application on behalf of the present petitioner and other co-accused persons, objections were filed before the learned Magistrate wherein the application is claimed to be not maintainable. The averments made in the application were denied and it is further pleaded that under Section 311 Cr.P.C. at that stage there was no occasion to summon the witnesses named in the application.

Learned Chief Judicial Magistrate, Gonda after hearing the parties, allowed the application vide order dated 19.02.2015, impugned in the present petition on the ground that intention behind Section 311 Cr.P.C. is to secure just decision of the case. The Court can summon any person as witness. Feeling aggrieved with this order, the present petitioner and other co-accused persons preferred a criminal revision before the learned Sessions Judge, Gonda. This criminal revision was dismissed on the ground that the order dated 9.2.2015 (19.02.2015 ?) is an interlocutory order and validity of such order can not be questioned by way of revision in view of bar contained in Sub-Section 2 of Section 397 Cr.P.C.

Learned counsel for the petitioner has argued that the summoned witnesses were neither named in the list of witnesses appended with charge-sheet nor their statements were recorded earlier. He further argued that prosecution evidence was going on when the application was moved. The application filed by the opposite party no. 4 at that stage was premature, the opposite party no. 4 has no locus standi to move such an application. The learned Magistrate has not applied his mind on the objections raised by the present petitioner. On behalf the petitioner reliance has been placed upon the principle laid down in the case of Gyanendra Kumar Rawat Vs. State of U.P. And another, 2013 (82) ACC 913, wherein in para 10, this Court has held that Section 311 Cr.P.C. can not be permitted to fill up the lacunas left in the prosecution evidence, too when no reason was disclosed in the application as to why the witnesses were not examined by the Investigating Officer under Section 161 Cr.P.C.

On behalf of the opposite party no. 4, it has been submitted that the opposite party no. 4 being purchaser of the property left by Late Bhanu @ Sanaullah has full right to participate in the prosecution of the petitioner and other co-accused persons for forging the will thereby defeating the rights accrued to them by way of sale deeds. It has further been submitted that civil suits have no bearing on the present criminal case. The learned Magistrate after due application of mind has rightly allowed the application. According to him, such application can be allowed at any stage. Section 301 Cr.P.C. does not preclude this exercise.

Before considering respective arguments of the parties, I would like to discuss the scope of Section 311 Cr.P.C., which reads as under:-

"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."

Hon'ble Supreme Court in the case of Natasha Singh Vs. CBI (State), AIR 2013 SC (Cri) 1564, has the following observation, in this regard in para no. 14 of the report, it reads as under:-

"14.The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party.

The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.

The very use of words such as ''any Court', ''at any stage", or ''or any enquiry, trial or other proceedings', ''any person' and ''any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."

Keeping in view the object for which Section 311 Cr.P.C. is enacted, it is to be examined whether the learned C.J.M., Gonda has considered the matter in correct prospective.

Perusal of the order 19.02.2015 reveals that the learned C.J.M., Gonda did not deal with the objections raised on behalf of the petitioner and other co-accused. He has merely cited three cases to illustrate the scope of Section 311 Cr.P.C. In the last para of the order he has concluded that for the just decision of the case, the Court can summon any witness, without examining the matter in the light of observation made by the Hon'ble Supreme Court quoted herein above. Learned C.J.M., Gonda has not applied his mind whether by summoning the witnesses named by the opposite party no. 4, he is giving an unfair advantage to the opposite party no. 4 or by summoning those witnesses he is placing the accused persons to their disadvantage.

Prosecution was initiated on the application of Smt. Nasibunnisha, who is widow of Late Bhanu @ Sanaullah, whose will was alleged to be forged by the present petitioner and other co-accused persons much prior to the execution of sale deeds by Smt. Nasibunnisha. Thus, at the time when the alleged crime was said to be committed, the opposite party no. 4 had no right or interest in the property of Late Bhanu @ Sanaullah. The opposite party no. 4 has not claimed that these 8 witnesses are witnesses of preparation of forged will and its registration.

Thus, from averments made in the application, it cannot be gathered that the witnesses named in the application are material witnesses and their examination is essential for just decision of the case. Only on account of Smt. Nasibunnisha turning hostile her successors-in-interest would not become material witnesses to prosecute the petitioner or other co-accused persons for a crime about which admittedly they had no knowledge otherwise they would not have purchased the property of Late Bhanu @ Sanaullah and paid consideration to Smt. Nasibunnisha.

It is true that even if, the opposite party no. 4 had no right to participate in the prosecution of the petitioner and other co-accused in the criminal case registered on the basis of F.I.R. lodged by Smt. Nasibunnisha, even then Court is fully empowered to summon any person as a witness if the Court comes to the opinion that evidence of such person would be essential to the just decision of the case, however, the application does not disclose what 8 witnesses propose to depose in the Court. In absence of these details, no opinion can be formed that these witnesses can be summoned under Section 311 Cr.P.C. that too when they were neither examined by the Investigating Officer nor their names were included in the list of witnesses submitted with the chargesheet.

I agree with the argument advanced on behalf of the opposite party no. 4 that the impugned order passed by the learned C.J.M., Gonda is a discretionary order and interference with the discretionary order should be made only in exceptional circumstances where the discretion has been improperly exercised on non existent grounds.

In the present case, learned C.J.M., Gonda has overlooked what the witnesses propose to depose before him and how it would help him to reach to the just decision of the case. It is evident from the order dated 19.02.2015 that the learned C.J.M., Gonda out of concern to protect the society thought it necessary to exercise his power to examine the witnesses cited by the opposite party no. 4. However, he did not take into account the adverse effect such exercise would bring on the defence. A purchaser of the property would try to turn the prosecution to his advantage while he purports to enter into the steps of his predecessor-in-interest. In criminal law passing of the interest to another person is not very material, material is the fact that the person who is being summoned must have personal knowledge about the occurrence. In this case, learned C.J.M., Gonda has not ensured that examination of the witnesses named in the application, would be a bona fide act of the opposite party no. 4 or it would be an act to prosecute the persons having adverse interest to him in the property in dispute.

Had the opposite party no. 4 or his witnesses had knowledge about the occurrence, they could have approached the police machinery much earlier independently? It is uncommon that persons, who have not been interrogated by the Investigating Officer or their names have not been mentioned in the list of witnesses, would volunteer themselves to be examined by the Court in support of the charges framed on the basis of charge sheet submitted by the Investigating Officer.

On behalf of the opposite party no. 4 case of Hanuman Ram Vs. State of Rajasthan and Others, AIR 2009 SC 69 has been relied upon. In para 9 of the case, Hon'ble Supreme Court has observed that the object of Section 311 Cr.P.C. is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. Whether the application filed by the opposite party no. 4 can be said to secure the rights of the orderly society, the answer would be perhaps not. The opposite party no. 4 and his witnesses are actuated by their own interest. They are not putting themselves to inconvenience for the sake of society. They are pursuing their own interest. In such circumstances, they must seek their remedy independently. The Criminal Court would not be justified to promote such exercise.

One other argument advanced on behalf of opposite party no. 4 is that application under Section 311 of the Code of Criminal Procedure has been moved prematurely. He has supported his argument on the strength of principle laid down in Gyanendra Kumar Rawat's case (supra). This argument cannot be accepted because the authority cited by the counsel for opposite party no. 4 does not support his argument. Rather the observation made in para-10 of the report demolishes this argument completely. Observation made in para-10 is quoted herein below:

"10. Certainly the prosecution cannot be permitted to fill up the lacuna's after it has examined all its witnesses. No reason was shown in the application as to why the said witness was not examined by the Investigating Officer under Section 161 Cr.P.C. and why such application was not moved at the initial stage. The prosecution cannot be permitted to reopen its case and there was no justification to allow such application moved at the belated stage."

In view of the discussion made herein above, it is apparent that the impugned order passed by the learned C.J.M., Gonda was without application of mind. Objections raised on behalf of the petitioner and other co-accused were not taken into consideration, therefore, the impugned order dated 19.02.2015 is misdirected exercise of power conferred by Section 311 Cr.P.C. Since the discretionary order has been passed on non existent grounds, the impugned order dated 19.02.2015 deserves to be set-aside.

The second impugned order legally speaking can not be faulted upon this Court. Order dated 19.02.2015 has been rightly judged to the interlocutory order against which remedy of the revision is barred by Sub-Section 2 of Section 397 Cr.P.C. Since the criminal revision was dismissed at the time of admission stage, if does not prevent this Court to interfere with the order dated 19.02.2015 while upholding the validity of the order dated 28.07.2015.

Now, the only question remain whether after setting-aside the order dated 19.02.2015, the application of opposite party no. 4 dated 20.01.2015 should be dismissed or it should be reheard. In my opinion, the application dated 20.01.2015 lacks necessary details to form an opinion whether the witnesses named therein, are the material witnesses, whose examination for the just decision of the case is essential. Therefore, the application dated 20.01.2015 also deserves to be dismissed. However, it would be in the fitness of the things that opposite party no. 4 be given a liberty to move a fresh application with necessary details supported with affidavits of the witnesses showing therein what they intent to depose before the Court so that interest of the society may be protected.

In the result, the order dated 19.02.2015 passed by learned C.J.M., Gonda in Case Crime No. 133C of 2012, under Sections 419, 420, 467, 468, 471 I.P.C. (State Vs. Abdul Sattar and others), Police Station Khodare, District- Gonda is set-aside and the application dated 20.01.2015 of Abdul Khalik is dismissed with the liberty that he may move a fresh application in the light of the observation made in the body of the judgment.

With these observations, the writ petition stands disposed of.

 
Dated: 11th September, 2015
 
R.K.P.							[Pratyush Kumar]