Ram Kumar Bajpai vs The State Of U.P.
2017 Latest Caselaw 6326 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. 27							A.F.R.	       			
 
Case :- CRIMINAL REVISION No. - 110 of 2006                 
 

 
Revisionist :- Ram Kumar Bajpai
 
Respondent :- The State of U.P.
 
Counsel for Petitioner :- R.N. Shukla
 
Counsel for Respondent :- G.A., Rajesh Kumar, Vinod Kumar Shahi.
 

 
Hon'ble Rang Nath Pandey,J.

1. This criminal revision has been filed against the order dated 16.01.2006 passed by the Additional Sessions Judge/ Fast Track Court No.2, District Sitapur in Sessions Trial No.168 of 2000 under Section 498A/ 304B of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act, Police Station Khairabad, District Sitapur.

2. In brief, prosecution case is that marriage of daughter of the complainant namely Anjula with Arun Kumar pandey, son of Bhagwat Prasad Pandey was solemnized on 9.5.1997 according to Hindu rituals. According to his capacity, the complainant gave dowry. When son of the complainant Pawan Kumar went to Makhpur, Arun Kumar abused his son and demanded colour T.V., V.C.R. and motorcycle. In this regard, daughter of the complainant informed her mother. Thereafter, on 2.10.1998, when it was informed Anjula was murdered, Sanjay Kumar Bajpai and his uncle Bishun Kumar went to her in-laws' house, they saw that dead body of Anjula was lying. On the written report, an F.I.R. was lodged under Section 498A/ 304B of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act.

3. Learned counsel for the revisionist has submitted that brother of the deceased namely Pawan Kumar is a necessary witnesses in context of demand of dowry, but Investigating Officer has not taken his statement.

4. Learned counsel for the revisionist has submitted that from the report of the postmortem conducted on 3.10.1998, it is evident that there are numbers of anti-mortem injuries and the deceased was pregnant.

5. An application for summoning Pawan Kumar as a witness has been filed by the revisionist and the same has been rejected by the court vide order dated 16.1.2006. Against the said order, the present revision application has been filed.

6. Learned A.G.A. and learned counsel for the opposite party has opposed the aforesaid facts on the ground that he is not named in the charge-sheet as a witness and his statement under Section 161 Cr.P.C. was not recorded by the Investigating Officer.

7. Perusal of the first information report reveals that Pawan Kumar, brother of the deceased, has witnessed the demand of dowry as been made by the husband of the deceased.

8. Learned Additional Sessions Judge was influced by the fact that the he is not named in the charge-sheet as a witness and his statement under Section 161 Cr.P.C. was not recorded by the Investigating Officer. In my opinion, that was not a sufficient reason for declining to exercise of powers of the court under Section 311 of the Code.

9. Section 311 Cr.P.C. 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."

10. Before adverting to the arguments advanced on behalf of the appellant, I would examine in general the scope and intent of scope and intent of Section 311 of the Cr.P.C.

11. Section 540 was found in chapter XLVI of the old code of 1898 under the heading "Miscellaneous" but the present corresponding Sections 311 of the new Code is found among other Sections in Chapter XXIV under the heading ''General Provisions as to Enquiries and Trials'. Section 311 is an almost verbatim reproduction of Section 540 of the old code except for the insertion of the words to be ''before the word ''used' in the first party 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 code and enables it ''at any stage of enquiry trial or other proceedings' under the code to act in one of the three ways, namely, (1) to summon any person as a witness or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined.

12. The second part which is mandatory imposes an obligation on the Court-

(1) to summon and examine, or

(2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

13. The very usage of the words such as 'any court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that 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 of the Section does not allow for any discretion but it binds 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.

14. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and 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 sides. Nonetheless if either of the parties with-holds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the New Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

15. There are various other provisions in the new Code corresponding to the provision of the old Code empowering the court specified therein to recall any witness or witnesses already examined or summon any witness, if it is felt necessary in the interest of justice at various stages mentioned in the concerned specific provisions.

16. Analogous to the above provisions of the Code of Criminal Procedure there are various provisions in the civil Procedure Code also enabling the civil Court to summon witnesses and examine them in the interest of justice. Under Order X Rule 2 of the Civil Procedure Code, the Court at the first hearing of the suit or at any subsequent hearing may examine any party appearing in person or present in Court or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied. Under Order X Rule 14 the Court may of its own motion summon as a witness any person including the party to the suit for examination and the said Rule is under the caption "Court may of its own accord summon as witnesses strangers to suit" and Order XVIII Rule 17 empowers the Court to recall any witness who has been examined and may subject to Law of Evidence for the time being in force put such questions to him as it thinks fit. The powers of the Court under this Rule 17 are discretionary and very wide.

17. Fazal Ali, J in Rameshwar Dayal v. State of U.P., while expressing his views about the careful exercise of its power by the court has stated:

"It is true that under Section 540 of the Criminal Procedure Code the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. The higher the power the more careful should be its exercise .... The words, "Just decision of the case" would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play."

In State of West Bengal v. Tulsidas Mundhra [1963] 2 S.C.J. 204 at 207, it has observed:

"It would be noticed that this section confers on criminal Courts very wide powers. It is no doubt for the Court to consider whether its power under this section should be exercised or not. But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exercise of the power conferred by Section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case."

18. It has been held by the Apex Court in Rajeswar Prosad Mizra v. State of West Bengal and Anr. while dealing with the ample power and jurisdiction of the court in taking additional evidence as follows:

"Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the Legislature has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial."

19. The above view has been reiterated in R.B. Mithani v. Maharashtra .

20. The principle of law that emerges from the views expressed by the Hon'ble Apex 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 and examination of any person which would depend on the facts and circumstances of each case.

21. Reliability of an particular piece of evidence is quite a different aspect from the admissibility of such evidence. Since, apparently, Pawan Kumar was a witness in context of allegation of demand for dowry as per the prosecution case, his evidence would be extremely material; and keeping such evidence away was not proper. Whether his evidence is reliable or not, could have been considered only after he was examined as a witness and avoiding to have the evidence of Pawan Kumar before the court on a technical was not proper.

22. In my opinion the learned Additional Sessions Judge should have exercised his power under Section 311 Cr.P.C. to summon Pawan Kumar as a witness, as his evidence would be necessary and in any case, desirable for a just decision of the case.

23. Since the learned Additional Sessions Judge has placed emphasis on the fact that Pawan Kumar is not named in the charge-sheet as a witness and his statement under Section 161 Cr.P.C. was not recorded by the Investigating Officer, I am inclined to allow the instant criminal revision while setting aside the order dated 16.01.2006 passed by Additional Sessions Judge, Fast Track Court No. 2, District Sultanpur.

24. The revision is allowed, in the aforesaid terms and to the aforesaid extent.

Order Date :- 06/11/2017

G.K. Sinha/Ashish/Rahul

[Rang Nath Pandey, J.]