Himachal Pradesh High Court
Prabha Rajiv vs State Of H.P. & Others on 4 August, 2021
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No.13 of 2018
Reserved on: 2nd August, 2021
Decided on : 4th August 2021
.
Prabha Rajiv ..Petitioner
Versus
State of H.P. & Others ...Respondents.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 NO
For the petitioner : Mr. Vivek Sharma, Advocate
For the respondents
r : Mr. Nand Lal Thakur, Addl. A.G., Mr.
Ram Lal Thakur, Asstt. A.G. & Mr. Rajat
Chauhan, Law Officer, for respondent
No.1.
Mr. T.S. Chauhan, Advocate for
respondent No.2.
Mr. Sunil Chauhan & Mr. H.C. Sharma,
Advocates for respondent No.3.
THROUGH VIDEO CONFERENCE
Anoop Chitkara, Judge.
CASE NUMBER Misc. Application under Section 311 Cr. P.C. filed in
BEFORE JUDICIAL case number 43-2 of 15/09, Decided on 30.05.2017,
MAGISTRATE by learned Judicial Magistrate 1st Class, Court No.4,
Shimla.
Challenging the dismissal of an application under Section 311 Cr.P.C. by
learned trial Court, the complainant has come up before this Court under Section
482 Cr.P.C.
Whether reporters of Local Papers may be allowed to see the judgment? Yes
2. The accused are facing trial for offenses punishable under Section 336
read with Section 34 IPC in the Court of learned Judicial Magistrate 1st Class,
Court No.4, Shimla. The notice of accusation has been put, and eight prosecution
witnesses already stand recorded. Before completion of the trial, the complainant
.
applied Section 311 Cr.P.C. for recalling PW-2 Suresh Bhardwaj and PW-3 the
complainant herself. The complainant also wanted to recall Pws Rajiv Verma and
Sunil Negi. Apart from these PWs, the complainant wanted to summon the
concerned official of the Municipal Corporation, Shimla.
3. The accused filed a reply to this application, raised various objections
regarding maintainability, and came up to fill the lacuna at the fag end.
4. Vide order dated 30th May, 2017, learned Judicial Magistrate 1 st Class,
Court No.4, Shimla dismissed the aforesaid application filed in Case No. 43-2 of
15/09.
5.
Challenging the said dismissal, the applicant has come up before this
Court under Section 482 Cr.PC.
ANALYSIS AND REASONING:
6. Since the case is based upon the report filed under Section 173(2) Cr.PC.,
the Public Prosecutor is conducting a trial being in charge of the prosecution case.
The applicant is aggrieved that the witness PW-2 Suresh Bhardwaj was not
adequately examined. Shri Rajiv Verma and Sunil Negi, who were given up, are
required to be examined. Apart from that, the petitioner wants the concerned
official of Municipal Corporation, Shimla, to prove the documents on the record.
7. Learned trial Court dismissed the application primarily on the ground that
learned Public Prosecutor accorded no permission to file such application and the
application was not maintainable.
8. Section 311 CrPC applies to all trials either launched on a complaint by a
private person or initiated based on the police report filed under Section 173(2)
CrPC. The statute empowers the trial Court to summon material witnesses or
examine any person present at any stage of any inquiry, trial, or other proceedings.
The primary purpose is that if the Court considers that the recalling and re-
examination of such person are essential to the just decision of the case, it may
recall or re-examine at any stage.
9. The provisions of Section 311 CrPC is explicit that it is for the Court to
conclude whether re-examination or recalling the witness is essential to the just
decision of the case or not. It is secondary that whether the Court realizes such
need or importance on its own or the public prosecutor who brings it to the notice
.
of the Court or the complainant. This question would certainly depend upon the
facts of each case, and no hard and fast rule can be made in this regard--the
object of Section 311 CrPC is to do justice not only from the accused's point of
view but also from society's point of view. Reference in this regard is made to the
judgment of the Hon'ble Supreme Court in Ratan Lal versus Prahlad Jat (2017) 9
SCC 340. The Court can always clear the ambiguity. A further reference is drawn
to the pronouncement of the Hon'ble Supreme Court in Manju Devi versus State
of Rajasthan (2019) 6 SCC, 203. It is clarified that this Court is not giving any
findings on the legal proposition about the applicant's rights to apply under
Section 311 Cr.PC.
10. The learned trial Court dismissed the application on technical grounds. It
did not give any finding that the examination of such witnesses was not essential,
and the decision would not have affected their non-examination. Ld. Magistrate
has misconstrued that if the application is allowed, it will amount to the holding of
denovo trial.
11. A perusal of the grounds taken in the application filed under Section 311
CrPC, prima facie, reveals that the examination of Shri Rajiv Verma is essential.
Similarly, examination of Sunil Negi is essential. The examination of the
concerned official from Municipal Corporation, Shimla, is equally essential. Thus
even if the applicant, who had appeared in the witnesses box as PW-3, and now
consider that she committed certain aspects would amount to fill-up the lacuna,
but so far as examination of Rajiv Verma, the then SHO, Sunil Negi, and the
concerned official from Municipal Corporation are concerned, it was not to fill up
the lacuna but was essential for the just decision of the case.
12. The application is allowed on this ground alone, and the impugned order is
set aside. The Court may proceed to examine Shri Rajiv Verma and the concerned
official from Municipal Corporation, Shimla. The Court may also consider re-
summoning of PW-2 Suresh Bhardwaj and any other person if, in the opinion of
the Court, it is essential for the just decision of the case.
13. The petition is allowed in the aforesaid terms. Pending application(s), if
any, shall also stand disposed of.
14. Any observation made hereinabove is neither an expression of opinion on
the merits of the case, nor shall the trial Court advert to these comments.
.
(Anoop Chitkara),
Judge.
August 04, 2021 (ps)
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