Bombay High Court
Ravindranath S/O Surajprasad Oza vs State Of Maharashtra, Through Pso ... on 6 August, 2021
Bench: Manish Pitale
13-APL290.16.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRI. APPLN. (APL) NO. 290 OF 2016
APPLICANT : Ravindranath S/o Surajprasad Oza, Aged
about 49 years, Occ.: Lawyer, R/o. 49, Uday
Nagar, Ayodhya Nagar, Nagpur.
-VERSUS-
RESPONDENTS : 1) State of Maharashtra, Through PSO Koradi,
Police Station Koradi, Dist: Nagpur.
2) Satish mahadeorao Uke, Aged about major,
Occ: Lawyer, R/o Plot No.1271, Parwati
Nagar, Nagpur.
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Mr. P. S. Tiwari, counsel for the applicant.
Mr. S.D.Shirpurkar, APP for respondent No.1.
Advocate Mr. S.M.Uke-respondent No.2 in person.
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CORAM : MANISH PITALE, J.
DATE : 06.08.2021
ORAL JUDGMENT
By this application, the applicant has challenged order dated
30/08/2014 passed by the Court of Judicial Magistrate First Class, Court
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No.9, Nagpur, whereby an application at Exhibit-76-A filed on behalf of
respondent No.2 under section 311 of the Code of Criminal Procedure
(Cr.P.C.) was allowed in so far as the applicant is concerned. The other
orders challenged by the applicant are order dated 02/09/2015 passed by
the very same Court rejecting an application at Exhibit-82 filed by the
applicant for recalling of the witness summons issued to him and order
dated 30/03/2016 dismissing a revision application filed by the applicant
challenging the order dated 02/09/2015 passed by the Court of
Magistrate.
2. The facts in brief leading to filing the present application are that in
a proceeding bearing Regular Criminal Case No.4250 of 2008, wherein
respondent No.2 is arrayed as an accused, after the evidence of the
defence was closed, respondent No.2 (original accused) moved an
application at Exhibit-76-A under section 311 of the Cr.P.C., asking the
Court of Magistrate to exercise power under the said provision in order to
issue witness summons to five persons. One of the persons, who was
sought to be examined in terms of the said application, is the applicant
before this Court. Admittedly, he happens to be an Advocate representing
the original complainant in a civil proceedings initiated by the respondent
No.2 (original accused). By the impugned order dated 30/08/2014, the
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said application was allowed. Consequently witness summons were issued
to the applicant herein.
3. On 26/11/2014, the applicant filed an application at Exhibit-82
seeking recall of the witness summons issued by the Court of Magistrate.
By order dated 02/09/2015, the said application was rejected by the
Magistrate, stating that there was no power available under the Cr.P.C. to
entertain the said application for recalling witness summons. Aggrieved by
the same, the applicant filed revision application before the Sessions Court
and by judgment and order dated 30/03/2016, the Sessions Court,
Nagpur, dismissed the application.
4. Mr. Tiwari, learned counsel appearing for the applicant, submitted
that a bare perusal of the application at Exhibit-76-A filed on behalf of
respondent No.2, would show that it is completely bereft of any reason
while seeking to call the applicant as a witness in the pending proceeding.
Attention of this Court is invited to paragraphs-3 and 4 of the said
application, stating that the same pertained to a Police Inspector and
another person, who the respondent No.2 intended to examine by means
of the said application. It is submitted that there is absolutely no reason
stated at all as to why respondent No.2 sought to summon the applicant as
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a witness. It was further submitted that the name of the applicant
appeared to be added in the said application without giving any reason for
examining him as a witness. The learned counsel for the applicant further
submitted that perusal of the impugned order dated 30/08/2014 would
show that the Court of Magistrate has also assigned no reason at all as to
why it was thought fit to exercise the discretionary power under section
311 of the Cr.P.C. to summon the applicant as a witness. It was further
submitted that merely because the applicant happened to be an Advocate
representing the original complainant in a civil suit filed by respondent
No.2 i.e. original accused, the applicant could not be summoned as a
witness. It was further submitted in the context of the order passed by the
Magistrate on the application of the applicant at Exhibit-82, under section
243 of the Cr.P.C., the Magistrate ought to have appreciated that power
could be exercised to recall the witness summons for the reason that the
aforementioned application at Exhibit-76-A had been moved by respondent
No.2 only with a view to delay the pending proceedings before the
Magistrate. It was further submitted that the Magistrate as well as
Revisional Court have failed to appreciate the true purport of the aforesaid
application while holding against the applicant.
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5. On the other hand, Mr. Satish Mahadevrao Uke, respondent No.2
appeared in person and submitted that there was a background in which
the application at Exhibit-76-A was moved for summoning witnesses,
including the applicant before this Court. It was submitted that criminal
proceedings have been initiated maliciously against respondent No.2 and
that in that backdrop examination of the applicant was necessary. It was
further submitted that under section 311 of the Cr.P.C., the Court was
certainly entitled to entertain and allow the application for a just decision
of the matter. According to respondent No.2, the Magistrate did not
commit any error in passing the impugned order. It was further submitted
that there was no provision in Cr.P.C. contemplating an application for
recall of witness summons and that therefore, the present application
deserves to be dismissed. Towards the end of his submission, respondent
No.2 submitted that nothing remained in the present application because
he had already made a statement before the Magistrate that he did not
intend to press the application at Exhibit-76-A, as against the applicant
before this Court.
6. Mr. S.D.Shirpurkar, learned APP appeared on behalf of respondent
No.1-State.
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7. Section 311 of the Cr.P.C. provides for a discretionary power to the
Court to pass appropriate orders in order to call witnesses and then recall
witnesses for a just decision of the case. This is one of the powers available
to the Court under the Cr.P.C. for the reason that a criminal trial is
intended to ascertain the truth of the matter and therefore, the power
under section 311 of the Cr.P.C. is not only vast and discretionary, but it
can be exercised at any stage of an enquiry, trial or other proceeding. The
learned counsel for the applicant has invited attention of this Court to a
judgment of the Hon'ble Supreme Court in the case of Vijay Kumar v. State
of U.P. and another, reported in 2012 CRI.L.J. 305, wherein the Hon'ble
Supreme Court has reflected upon the nature of power available to a Court
under section 311 of the Cr.P.C. The relevant portion of the said judgment
reads as follows:
"This Section consists of two parts, viz., (1) giving discretion
to the court to examine the witness at any stage; and (2) the
mandatory portion which compells a court to examine a
witness if his evidence appears to be essential to the just
decision of the case. The Section enables and in certain
circumstances, imposes on the Court the duty of summoning
witnesses who would have been otherwise brought before the
Court. This Section confers a wide discretion on the Court to
act as the exigencies of justice require. The power of the
Court under section 165 of the Evidence Act is complementary
to its power under this Section. These two sections between
them confer jurisdiction on the Court to act in aid of justice.
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There is no manner of doubt that the power under section 311
of Code of Criminal Procedure is a vast one. This power can
be exercised at any stage of the trial. Such a power should be
exercised provided the evidence which may be tendered by a
witness is germane to the issue involved, or if proper evidence
is not adduced or relevant material is not brought on record
due to any inadvertence. It hardly needs to be emphasized
that power under section 311 should be exercised for the just
decision of the case. The wide discretion conferred on the
court to summon a witness must be exercised judicially, as
wider the power, the greater is the necessity for application of
the judicial mind. Whether to exercise the power or not would
largely depend upon the facts and circumstances of each case.
As is provided in the Section, power to summon any person as
a witness can be exercised if the court forms an opinion that
the examination of such a witness is essential for just decision
of the case".
8. The said view has been consistently followed by the Hon'ble
Supreme Court and this Court also. It is evident that when an application
under section 311 of the Cr.P.C. is moved, at least some reasons need to be
stated as to why a particular person is sought to be examined by the
applicant therein. Such an application cannot be moved in a routine and
cursory manner and some semblance of ground or substratum is required
to be made out as to why a person is sought to be examined by asking the
Court to exercise power under section 311 of the Cr.P.C., for a just decision
of the case. Equally, the Court considering such an application is expected
to assign reasons, at least briefly, as to why such an application is being
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allowed to issue witness summons.
9. In the present case, the application at Exhibit-76-A states in
paragraphs-3 and 4 as follows:
"3. That the accused wants to examine the said PI for the
proper defense and adjudication in this matter.
4. The accused no.1 also wants to examine Io in crime
no.19/07 PS Sonegaon, the crime which was registered against
accused no.1 and 2 on the complaint of Mr Mohd. Rafiq who
is informant in thismatter and the subject matter is also
involved in this matter. M.zafar, & D.Ramane ^ Adv RS Oza
are related with these crimes."
10. It is evident from the above quoted portion of the said application
that although the name of the applicant has been stated in paragraph-4
towards the end, there is not even a semblance of any reason stated by
respondent No.2 as to why the applicant is sought to be examined by
asking the Court to exercise discretionary power under section 311 of the
Cr.P.C. There is no statement as to why the applicant needs to be
examined for a just decision of the case.
11. The order dated 30/08/2014, allowing the application under
section 311 of the Cr.P.C., reads as follows:
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"Perused application and say of APP. Herad Ld Advocate Shri
Uike and APP is absent. The matter is kept for argument. But
accused want to examine 5 witnesses. Therefore, in the
interest of justice it is just and proper to examine above
referred witness. Hence, application is allowed. No order as
to cost."
12. A perusal of the above quoted order, shows that the aforesaid Court
of Magistrate has not assigned any reason as to why the applicant before
this Court is required to be examined as a witness for a just decision of the
case. The approach adopted by the Court is in the teeth of the law laid
down by the Hon'ble Supreme Court in the above quoted judgment, as also
judgments that followed the aforesaid position of law. Applications under
section 311 of the Cr.P.C. cannot be allowed in a routine and cursory
manner without assigning any reason, particularly when the power has to
be exercised by the Court only when it finds that it would be necessary for
a just decision in the case. The impugned order is completely bereft of any
reason as to why the applicant before this Court is required to be
summoned as a witness. Therefore, on this short ground, the impugned
order dated 30/08/2014, deserves to be quashed and set aside, as against
the applicant before this Court.
13. Insofar as the impugned order dated 02/09/2015 passed by the
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Court of Magistrate and the judgment and order dated 30/03/2016 passed
by the Sessions Court at Nagpur in Criminal Revision No.300 of 2015 are
concerned, this Court does not find any error in the said orders, for the
reason that reliance on section 243 of the Cr.P.C. on behalf of the applicant
appears to be misplaced while seeking recall of witness summons. But the
said orders are rendered inconsequential and pale into insignificance,
because the basic order dated 30/08/2014 is found by this Court liable to
be set aside. As a consequence, the said impugned order dated
02/09/2015 passed by the Magistrate on Exhibit-82 and the judgment and
order dated 30/03/2016 passed by the Revisional Court deserve to be set
aside, as having been rendered inconsequential.
14. In view of the above, the application is allowed. The impugned
orders are quashed and set aside, insofar as the applicant before this Court
is concerned.
15. Rule is made absolute in the above terms.
16. In view of disposal of the main application, the pending
application(s) is(are) disposed of.
JUDGE
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