Himachal Pradesh High Court
Satinder Goyal vs Megh Raj Dhangta on 30 September, 2024
Neutral Citation No. ( 2024:HHC:9341
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO Nos.749, 750 and 751 of
2024.
.
Reserved on: 12.09.2024
Date of Decision: 30.09.2024.
1. Cr. MMO No. 749 of 2024
Satinder Goyal ...Petitioner
Versus
Megh Raj Dhangta ...Respondent
2. Cr.MMO No. 750 of 2024
Satinder Goel ...Petitioner
Versus
Megh Raj Dhangta ...Respondent
Satinder Goel ...Petitioner
Versus
Megh Raj Dhangta ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1
For the Petitioner(s) : M/s Narender Guleria and
Lovneesh Thakur, Advocates,
in all the petitions.
For the Respondent(s) : Mr. Rajesh Prakash,
Advocate.
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Neutral Citation No. ( 2024:HHC:9341
Rakesh Kainthla, Judge
The present petitions have been filed against the
.
order dated 25.04.2024, passed by the learned Judicial
Magistrate, First Class, Chopal, District Shimla, H.P. (Circuit
Court at Theog) (learned Trial Court) vide which application
under Section 311 of Code of Criminal Procedure (Cr. P.C) was
dismissed and the evidence of the accused was closed by the
order of the Court.
2. It has been asserted that the complainant filed
three complaints against the petitioner(s). The Court issued
notices and the accused appeared before the learned Trial
Court. Notice of accusation was put to the accused. The
statement of the complainant was recorded on 24.11.2022 and
he was cross-examined on 17.12.2022. The accused had taken
a specific defence during the cross-examination of the
complainant that he had nothing to do with Sai Provisional
Store, Chambaghat, District Solan, H.P. where the demand
notice was served. The statement of the accused under
Section 313 of Cr.P.C. was recorded on 17.12.2022. The accused
Neutral Citation No. ( 2024:HHC:9341
opted to lead defence evidence and he was directed to take
steps within 15 days. Learned counsel for the petitioner could
.
not take steps as he belonged to Solan. The steps were taken
on 17.04.2023. The matter was fixed for 08.05.2023. It was
adjourned for 18.07.2023. It could not be taken up on
18.07.2023 as it was assigned to another Court. The matter
was taken up on 23.08.2023, 23.11.2023, 22.12.2023,
17.02.2024, 22.04.2024 and 25.04.2024. The accused had
taken steps in May 2023 and pursued his case diligently. The
witnesses were not summoned despite the timely steps taken
by the accused. One witness was examined on 17.02.2024.
One witness Swati was present on 22.04.2024 but she was
given up. The learned Trial Court directed the accused to
examine the defence witnesses on self-responsibility on
25.04.2024. The accused filed an application under Section
311 of Cr.P.C. as it was found that the statement of DW-1 was
not recorded correctly in Criminal Complaint No.138-3/2018.
This statement was contrary to the statement recorded in
Criminal Complaints No. 137-3/2018 and 136-3/2018. The
witness was required to be recalled to clarify the discrepancy.
Neutral Citation No. ( 2024:HHC:9341
The witness from the Department of Industries was also to be
summoned as his examination was necessary for the
.
adjudication of lis pending between the parties. The learned
Trial Court dismissed the application on the ground that 8-9
opportunities had been granted to the accused to conclude his
defence. However, the defence was not concluded and the
matter was intentionally delayed. The accused had diligently
pursued his case but could not conclude his evidence due to
circumstances beyond his control.
r The order denied an
opportunity to the accused to defend himself; therefore, it
was prayed that the petitions be allowed and the order passed
by the learned Trial Court be set aside.
3. I have heard Mr. Narinder Guleria and Mr.
Lovneesh Thakur, learned counsel for the
petitioner(s)/accused and Mr. Rajesh Prakash, learned
counsel for the respondent /complainant.
4. Mr Narinder Guleria, learned counsel for the
petitioner(s)/accused submitted that the accused had taken
steps to summon the witnesses. The witnesses were beyond
the control of the accused; therefore, he could not produce
Neutral Citation No. ( 2024:HHC:9341
them on self-responsibility. Learned Trial Court erred in
closing the evidence without allowing the accused to prove his
.
defence. The application under Section 311 of Cr.P.C. was
dismissed without assigning any valid reasons. The
examination of the witnesses was essential and dismissal of
the application has affected the valuable rights of the accused.
Therefore, he prayed that the present petitions be allowed and
5.
r to
the order passed by the learned Trial Court be set aside.
Mr. Rajesh Prakash, learned counsel for the
respondent submitted that the learned trial Court rightly
closed the evidence as the accused had failed to complete the
defence evidence despite having been granted numerous
opportunities. The application was filed just to prolong the
trial and the Court was justified in dismissing the same;
therefore, he prayed that the present petitions be dismissed.
6. I have given considerable thought to the
submissions made at the bar and have gone through the
records carefully.
Neutral Citation No. ( 2024:HHC:9341
7. It is apparent from the copies of the order sheets
that the accused had taken steps to summon the witnesses. It
.
was specifically recorded on 08.05.2023 that witnesses were
not present as steps were taken late. The witnesses were
ordered to be summoned for 18.07.2023 on the old process fee
(PF). The case was taken on 23.08.2023 and the witnesses
were ordered to be summoned for 23.11.2023. The
DW-1 and DW-2.
r to
endorsement reads that the summonses were served upon
On 23.11.2023, the learned Trial Court
ordered the summoning of the witnesses for 22.12.2023,
without taking any coercive steps to ensure their presence as
they were not present in the Court despite service. It was
ordered on 22.12.2023 that the witnesses be summoned for
17.02.2024. The statement of one witness was recorded on
17.02.2024 and witnesses at Sl. No. 1, 3 and 4 were ordered to
be summoned by way of bailable warrants in the sum of
₹5000/- each for 22.04.2024. There is an endorsement of
'issued' showing that steps were taken. The order sheet dated
22.04.2024 shows that the witness at Sl. No.3 was present but
could not be examined as she was not intended to be
Neutral Citation No. ( 2024:HHC:9341
examined. No other witness was stated to be present or
served. The Court noticed that the case was at the stage of
.
DWs since 2022 and numerous opportunities were given to
the accused to conclude the defence evidence but the evidence
was not concluded. The accused prayed for adjournment and
the same was allowed and the matter was listed on 25.04.2024
as the last opportunity subject to the cost of ₹1000/-. It was
further stated that no further opportunity would be granted
on the next date. The order sheet dated 25.04.2024 reads that
an application under Section 311 of Cr.P.C. was filed, which
was disallowed on the ground that the last opportunity was
granted and the accused was directed to produce his entire
evidence on self-responsibility. 8-9 opportunities had
already been given to the accused to conclude his evidence but
the evidence was not concluded. Hence, the evidence of the
accused was closed by the order of the Court.
8. A perusal of the order sheets of the learned Trial
Court shows that the accused was not a fault as he had taken
steps on every date and summons were issued. The
witnesses were served once but no coercive steps were taken
Neutral Citation No. ( 2024:HHC:9341
to ensure their presence. The witnesses were not served
thereafter.
.
9. Section 254(2) of Cr.P.C. [Section 277 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)] deals with
the procedure of the summons case when the accused is not
convicted. Section 254(2) of CrPC (Section 277 of the BNSS)
provides that the Magistrate may issue the summon to any
witness directing him to attend or to produce any document
or other thing. The only requirement is that before
summoning any witness reasonable expenses of the witnesses
are required to be deposited. Once the accused had taken the
steps, it was the duty of the Court to summon the witnesses
and the party could not have been faulted for non-production
of the witnesses when he was taking steps and the summons
were not served upon the witnesses or coercive steps were not
taken against the witnesses by the Court.
10. The accused filed an application under Section 311
of Cr.P.C. which was dismissed simply on the ground that the
matter was listed for the evidence of the accused as last
opportunity. This was not a relevant consideration. The Court
Neutral Citation No. ( 2024:HHC:9341
was supposed to find out whether the examination of the
witnesses was essential for the just decision of the case or not.
.
The application could not have been dismissed on the ground
that it was the last opportunity to produce the evidence
because the Court has been conferred a power under Section
311 of Cr.P.C. to examine the witnesses at any stage if their
examination appears to be essential. The only relevant factor
is whether the examination is essential or not; therefore, the
learned Trial Court misdirected itself while dismissing the
application for leading additional evidence.
11. The legislature has provided the procedure for
summoning the witnesses through the Court process because
it is aware of the fact that witnesses are not always under the
control of a person. The witnesses have to appear in the Court
after postponing their work. They have to withstand gruelling
cross-examination by the opposite party without having any
interest in the case except that they happened to be witnesses;
therefore, they do not voluntarily choose to appear in the
Court and the Court should always keep this consideration in
mind while passing an order closing the evidence of a party.
Neutral Citation No. ( 2024:HHC:9341
Such an order can lead to harsh consequences of depriving the
Court's assistance without party's fault. Of course, the Court
.
is justified in refusing to summon the witness, if the purpose
of examination of the witness appears to be unnecessary or
irrelevant but once the Court chooses to summon the witness,
it should not stop the process midway and prevent the party
from proving its case.
12.
Thus, the learned Trial Court had erred in first
imposing a cost of ₹1000/- upon the accused when he was not
at fault; secondly, in closing the evidence when the accused
had taken steps and thirdly in dismissing the application
without recording the finding whether the examination of
witness was essential or not. Therefore, the learned Trial
Court has erred in exercising the jurisdiction vested in it and
the order passed by the learned Trial Court is not sustainable.
13. In view of the above, the present petition is allowed
and the orders dated 25.04.2024, passed in all complaints by
the learned Trial Court are ordered to be set aside. The learned
Trial Court shall ensure the presence of the witnesses as long
Neutral Citation No. ( 2024:HHC:9341
as the steps are being taken by the accused and will decide the
application for leading the additional evidence as per the law.
.
14. The parties through their respective counsel are
directed to appear before the learned Trial Court on
17.10.2024.
15. The observations made hereinbefore are confined
to the disposal of the petitions and will not have any bearing,
whatsoever, on the merits of the case.
16. The petitions stand disposed of and so are pending
application(s), if any.
(Rakesh Kainthla)
Judge
30th September 2024
(Ravinder)
