Kripa Nath vs State Of Up And Anr.
2021 Latest Caselaw 10718 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 28
 

 
Case :- U/S 482/378/407 No. - 5277 of 2016
 

 
Applicant :- Kripa Nath
 
Opposite Party :- State Of Up And Anr.
 
Counsel for Applicant :- Sandeep Kumar Pandey
 
Counsel for Opposite Party :- Govt. Advocate,Vinod Kumar Pandey
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Sri Sandeep Kumar Pandey, learned counsel for applicant, Sri Vinod Kumar Pandey, learned counsel for opposite party no.2, learned Additional Government Advocate for State and perused the record.

By preferring the present application the applicant is praying to quash the order dated 30.06.2016, passed by the Additional Sessions Judge (FTC), Sultanpur in Criminal Revision No.85 of 2016, Kripa Nath v. State of U.P. and others and the order dated 10.2.2016, passed by the Additional Chief Judicial Magistrate, Room No.20, Sultanpur in Criminal Case No.5782 of 2009, Heeralal v. Raja Ram and others, under Sections 379,447,504 & 506 I.P.C.P.S.Jaisinghpur, District Sultanpur.

While referring to the order dated 10.2.2016, passed by the trial court as well as the order dated 30.6.2016, passed by the revisional court it is vehemently submitted by learned counsel for applicant that both the courts below have not considered the law with regard to Section 311 Cr.P.C. in right perspective and has dismissed the application moved by the applicant to summon the Investigating Officer, who had earlier forwarded a final report in a case instituted on behalf of opposite party no.2 and, therefore, has caused great prejudice to the applicant.

It is further submitted that if the evidence of the Investigating Officer, who had forwarded the final report in the matter, has not been recorded, the applicant shall be prejudiced in his defence and the material information/evidence shall be left and thus the recording of the evidence of the Investigating Officer, namely, Gayasuddin is essential for just decision of the case and, therefore, both the courts have committed illegality in passing the impugned orders and the same are required to be quashed.

Learned counsel for opposite party no.2 submits that on an FIR lodged by opposite party no.2 against the applicant, the final report was submitted by the Investigating Officer, namely Gayasuddin and on a protest petition filed by opposite party no.2 the same was treated as complaint and the applicant was summoned to face trial under Sections 379,427, 504 and 506 I.P.C. It is further submitted that the whole evidence of the complainant side has been recorded and the statement of the applicant under Section 313 Cr.P.C. has also been recorded and the instant application has been moved when already the case was fixed for argument stage.

It is also submitted that the application has been moved only for the purpose of delaying the proceedings of the case as the evidence of the Investigating Officer, who had filed/submitted the final report with regard to the FIR lodged by the opposite party no.2 was not at all required or necessary for the disposal of the case and thus there is no illegality or irregularity in the impugned orders.

Learned counsel representing the State has also supported the submissions of learned counsel for opposite party no.2 and submits that it is apparent that the application has been moved with an ulterior motive for keeping the proceedings of complaint case pending before the courts below and there is no illegality in the orders passed by both the courts below.

Having heard learned counsel for parties and perused the record it is evident that under Section 311 Cr.P.C. a power has been conferred on the trial court that it may, at any stage of any inquiry, trial or other proceedings, summon any person as a witness, or examine any person in attendance 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.

There cannot be any doubt in the proposition that if the evidence of a witness is required for the just decision of the case then it is always open to the trial court to get him summoned under the second clause of Section 311 Cr.P.C. and the result of a criminal trial could not be left at the mercy of the parties, however whenever a party approaches a criminal court for the purpose of summoning any witness for recording his evidence, a question will have to be posed by the court to itself as to why the evidence of that particular witness is required to be recorded. There cannot be any doubt also in the proposition that the power under Section 311 Cr.P.C. is purely discretionary, however the same has to be exercised with due care and caution so that it should not cause any prejudice to either party.

Learned counsel for applicant has relied on the judgment of Hon'ble Supreme Court, passed in Natasha Singh v. CBI (State), 2013 Cri.L.J. 3346 and learned counsel for opposite party no.2 has relied on, Ratanlal v. Prahlad Jat and others, (2017) 9 SCC 340, Rakesh Mittal v. Central Bureau of Investigation and others, AIROnline 2019 Utr 504, Yogendra Singh Dohare v. State of U.P., passed in Criminal Revision No.278 of 2010 by this Court speaking through Hon'ble Single Judge, Rohit and others v. State of U.P., 2020 (1) JIC 420 (All) and Vinod Agarwal and another v. State of U.P. and another, reported in 2019 (3) JIC 541 (All).

Having considered the above mentioned case laws it is settled that the power under Section 311 Cr.P.C. must be exercised with care and caution and only in the cases where exercising of such power could be justified for very strong and valid reasons. Summoning of a witness should not be a matter of course and the discretion of the court should be exercised judicially in a manner that no party to the lis is prejudiced.

Coming to the facts of the present case, the admitted position is that the complaint case is pending at the stage of hearing of arguments and at this stage an application for summoning a police personnel who had earlier investigated the case and filed the final report (closure report) in favour of the applicant, was moved for summoning him as a court witness. No justifiable reason has been given in the application as to why the evidence of a police officer, who was an Investigating Officer in the case filed by the opposite party no.2 against the applicant and has submitted the final report is necessary in a complaint case. Nothing has been submitted even at the time of hearing of this case as to how and in what manner the evidence of that witness is required or necessary for the just decision of the case.

It is an admitted fact that Sri Gayasuddin, Sub Inspector of Police, to whom the applicant wants to examine as a court witness had investigated the FIR lodged by the opposite party no.2 against the applicant and had also submitted a closure report. It is also an admitted fact that the Magistrate on the protest petition being filed by the opposite party no.2 had taken the cognizance of the offence and treated the protest petition as complaint case and till now the procedure as prescribed under Chapter XV of Cr.P.C. is being followed. Thus there appears no necessity of recording the evidence of investigating officer of the case who had submitted final report in favour of applicant/accused.

Having perused the impugned orders, I do not find any illegality or to say even any irregularity in the same. In the considered opinion of this Court how a police officer, who had only submitted a final report, which has become irrelevant, as the trial court had taken the cognizance on protest petition by treating it as complaint and proceeded under Chapter XV Cr.P.C. would be a material witness for the accused person/applicant.

Thus the application, which was moved before the trial court for summoning Sri Gayasuddin, was totally misconceived and nothing illegal or irregular has been done either by the trial court or by the appellate court in dismissing the same.

In view of above, the application lacks merit and the same is dismissed.

However, the dismissal of the instant application moved on behalf of the applicant/accused shall not circumcise the discretion of the trial court to take any decision in the second part of Section 311 Cr.P.C.

A copy of this order be immediately sent to the trial court.

Order Date :- 24.8.2021

Irfan