Kaushalya Rani vs Municipal Corporation Of Delhi & ...
1999 Latest Caselaw 360 Del

JUDGMENT

S.N. Kapoor, J.

1. This petition under Section 482, Cr.P.C. is directed against an order passed by the learned Metropolitan Magistrate summoning additional witnesses under Section 311, Cr.P.C. allegedly to fill up the lacunae in the prosecution case.

2. It is alleged that on 16.3.1988, the petitioner was found committing offences punishable under Sections 332 and 461 of the Delhi Municipal Corporation Act for raising unauthorised construction of walls, 6 kitchens, 6 drawing rooms, 6 toilets, 6 bedrooms, 8 toilets, 4 passages, 4 lobbies at the mezannine floor and walls of 14 rooms at premises No. 129, Nirankari, Colony, Delhi. The complaint was filed on 17.5.1988 and the cognizance was taken on 4.6.1988. Notice was issued and the prosecution evidence was closed on 25.2.91. After the statement of the accused the case was listed for final arguments but after 7 years of prosecution and 4 years after closing the prosecution evidence an application was moved for examination and recall of witnesses, despite objections that application was allowed on 24.9.1996. The petitioner preferred a revision but that was also dismissed on the preliminary ground that such an order being interlocutory in nature, revision was barred by Section 397(2) of the Cr. P.C. Feeling aggrieved she has now filed this petition under Section 482, Cr.P.C.

3. Learned Counsel for the respondent resists the application on the ground that order passed by learned Metropolitan Magistrate allowing the application was most appropriate order in the circumstances of the case. The petitioner has altogether reconstructed the building carved out mezannine floor, additional rooms, toilets, kitchen etc. and in order to confront the petitioner, sanctioned plan, F.I.R. House Tax record was required to be proved by recalling and summoning witness.

4. I have heard the learned Counsel for the parties and gone through the record.

5. There cannot be any dispute that under Section 311, Cr.P.C., any Court may at any stage of any inquiry, trial or other proceedings, 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 its mandatory part further provides: "and the Court shall summon and examine or recall and re-examine any such person; if his evidence appears to be essential to the just decision of the case." It would neither be glaring defect in the procedure nor a manifest error nor a point of law leading to miscarriage of justice if at the time of argument learned lower Court allowed recording of additional evidence by exercising power under Section 311, Cr.P.C. for determination and just decision of a material question. Such an exercise of powers under Section 311 Cr.P.C. falls in mandatory part of the section and the learned Trial Court could not do otherwise.

6. Besides, allowing or disallowing an application for additional evidence, being an interlocutory order cannot be challenged in revision. Allahabad, Punjab and Haryana, Jammu & Kashmir, Gujarat, Delhi High Courts have consistently held so (See Vinod Kumar Vs. The Municipal Corporation of Delhi, 1979 C.C.Cases (Delhi) 63 and Naranjan Kour Vs. State of J&K, 1988 Crl.L.J. 1141 (J&K). Even if this Court takes a different view that the prosecution after having a long slumber has woken up all of a sudden to move the application, this Court may not be inclined to substitute its own view. Had it not been delay of four years, after recording the statement of the accused one might not have any occasion to feel that the prosecution suddenly got up after prolonged deep slumber.

7. Learned Counsel for the petitioner submits that it has been held in Jamat Raj Kewalji Govani Vs. State of Maharashtra, 1968 Crl.L.J. 231 that prosecution could not be allowed to rebut the evidence something suddenly and unexpectedly. There was no doubt that the general rule was that where Crown began its case like a plaintiff in a civil suit, they could not afterwards support their case by calling fresh witness, because they met with certain evidence that contradicts it. They stood or fell by the evidence they had given. They must close their case before the defense began but if any matter arose ex improviso which no human ingenuity could foresee on the part of a defendant in a civil suit or a prisoner in a criminal case, there was no reason why that matter which so arose ex improviso might not be answered by contrary evidence on the part of the Crown. He further submits that this indicates that after such a long time neither such an application should have been moved nor entertained for the purpose of filling up the lacunae nor it arose all of a sudden though the powers of the learned Metropolitan Magistrate could not be disputed in this regard. Consequently, he submits that it may not appear to be appropriate exercise of powers under Section 311, Cr.P.C.

8. This submission could be accepted if the additional evidence sought to be brought on record falls in discretionary part of Section 311, Cr.P.C. but not in respect of evidence which falls in mandatory part of Section 311, Cr.P.C.

9. Since it cannot be said that the witnesses are material for just decision of the case, this Court is not supposed to interfere in this interlocutory order.

10. For the foregoing reasons, this Court is not inclined to interfere in this impugned order recalling and summoning additional evidence. Petition is dismissed accordingly.