Dip Narayan vs The State Of Jharkhand
2022 Latest Caselaw 906 Jhar

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                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No. 2103 of 2019
             1.   Dip Narayan, aged about 58 years, Son of Late Tej Narayan Mahato
             2.   Bibha Devi, aged about 50 years, Wife of Dip Narayan
                  Both are residents of Mahato Tola, Saraidhela, P.O. & P.S. Saraidhela,
                  District- Dhanbad                               ... Petitioners
                                        -Versus-
             1.   The State of Jharkhand
             2.   Satyanarayan, aged about 65 years, son of Late Tej Narayan Mahato,
                  resident of Sumitra Apartment, Bekar Bandh, P.O., P.S. & District-
                  Dhanbad                                         ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mr. Shekhar Prasad Sinha, Advocate For the Opposite Party-State : Mrs. Ruby Pandey, A.P.P. For Opposite Party No.2 : Mr. Kalyan Banerjee, Advocate

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11/08.03.2022. Heard Mr. Shekhar Prasad Sinha, learned counsel for the petitioners,

Mrs. Ruby Pandey, learned A.P.P. appearing for the opposite party-State and

Mr. Kalyan Banerjee, learned counsel for opposite party no.2.

2. This petition has been filed for quashing the order dated 14.06.2019

passed in Criminal Revision No.47 of 2019, arising out of C.P. Case No.2032

of 2015 passed by the learned Principal District & Sessions Judge, Dhanbad

whereby the order dated 05.01.2019 passed by the learned Judicial

Magistrate, 1st Class, Dhanbad has been reversed by the revisional court

and direction was issued to examine one Arun Kumar Agrawal as witness at

charge stage.

3. It is a case between two brothers. The complaint was filed by

opposite party no.2, who is elder brother of petitioner no.1 alleging therein

that the complainant has purchased 4 Kathas land in Saraidhela Mahato Tola

in the year 1977 where he constructed a house but on 13.07.2015 he came

to know that petitioner no.1 along with wife is living in his house after

taking key of the house from the complainant under the pretext of looking

after the house and also to keep the house clean.

4. Mr. Shekhar Prasad Sinha, learned counsel for the petitioners submits

that petitioner no.1 is the younger brother of the complainant and there is

land dispute between both the parties for which Title Suit No.98 of 2015 is

pending in the court of the learned Civil Judge (Senior Division) 1 st,

Dhanbad. He further submits that a petition was filed on 23.04.2018 by the

complainant in C.P. Case No. 2032 of 2015 for grant of permission to

examine Arun Kumar Agarwal, whose name was not disclosed in the list of

witnesses mentioned by the complainant in the complaint petition. He also

submits that in the complaint petition, the complainant has cited 4

witnesses, namely, Ajay Kumar Oraon, Tapas Bern, Rakesh Kumar and

Abha. He further submits that before charge under Section 244 Cr.P.C., the

complainant has examined only 2 witnesses cited by him in the complaint

petition namely Abha and Tapas Bern. He also submits that from the

evidence of the complainant and Tapas Bern, the name of Arun Kumar

Agarwal has not been disclosed. He further submits that earlier the trial

court by the reasoned order dated 05.01.2019 has rejected a petition for

examining Arun Kumar Agarwal. He further submits that only to fill up the

lacuna and to delay the trial, that petition was filed by the complainant. He

further submits that the revisional court while reversing the order of the trial

court, has not considered the judgment rendered by the Hon'ble Supreme

Court in the case of Sayeed Farhana Shamim v. State of Bihar ,

reported in (2008) 8 SCC 218 in its right perspective. He further submits

that there is no doubt that the learned Magistrate is having discretion, but it

requires to be applied in the facts and circumstances of each case. Only to

fill up the lacuna, that discretion is not permissible. He also submits that the

learned trial court has rightly rejected the petition, whereas, the revisional

court has reversed the order of the trial court and allowed the criminal

revision petition. He relied upon paragraph 11 of the judgment rendered by

the Hon'ble Supreme Court in the case of Sayeed Farhana Shamim

(supra). He further relied upon paragraph 7 of the judgment rendered by

the Bombay High Court, Nagpur Bench, Nagpur in the case of Dr. Kishor &

another v. Appropriate Authority under the Pre-Conception and

Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) &

another, in Criminal Application (APL) No.19 of 2014 , dated

13.01.2015.

5. Paragraph 7 of the said judgment is quoted herein below:

"7. If one peruse application vide Exh.38, one would notice that no reasons whatsoever have been stated in the application as to why, even though a pursis had been filed vide Exh.33 for closure of evidence and even though thereafter arguments had been heard by the Court for either proceeding under Section 245 or Section 246 of the Code of Criminal Procedure, the application could be allowed by the Court. It appears that this application has been moved by the prosecution/ complainant only to fill up the lacuna in the evidence that was recorded at the stage of evidence before charge and in order to fill up this lacuna, application vide Exh.38 had been moved by the prosecution. It is well settled law that further evidence can not be allowed to be led by the prosecution/complainant either under Section 244 or Section 311 of the Criminal Procedure Code just to fill up the apl19.14.odt 4/5 lacuna in the prosecution case. The dominant reason for allowing of adducing of further evidence is of necessity of the same for reaching a just decision in the case. But, if the effect of allowing of the application is going to be of washing out of the defence of the accused, the application for adducing of further evidence cannot be allowed as allowing of such an application would cause serious prejudice to the defence of the accused. This is what has happened in the instant case by passing of the impugned order by the learned Magistrate on 17/6/2013."

6. Per contra, Mrs. Ruby Pandey, learned A.P.P. appearing for the

opposite party-State submits that there is no illegality in the criminal

revision order and if no prejudice is caused to the petitioners, there is no

point of interference with the criminal revision order. She relied upon

paragraphs 6 and 8 of the judgment rendered by the Hon'ble Supreme

Court in the case of Sayeed Farhana Shamim (supra). On these

grounds, she submits that this petition is fit to be dismissed.

7. Mr. Kalyan Banerjee, learned counsel has appeared on behalf of

opposite party no.2 and he submits that the Court has exercised its power

in view of the statement of the witnesses wherein the name of Arun Kumar

Agarwal has been disclosed and that is why the power under Section 244

Cr.P.C. has been exercised. He further submits that the said judgment has

been considered by the revisional court in paragraph 7 of the order dated

14.06.2019. He also submits that there is no illegality in the impugned

order.

8. The Court has gone through the materials on the record. It is an

admitted fact that the said Arun Kumar Agarwal was not named in the list of

witnesses in the complaint petition. The learned trial court recorded the

reasons that Arun Kumar Agarwal was not present as a witness and other

witnesses, who have been examined, have also not disclosed the name of

Arun Kumar Agarwal. The name of the said Arun Kumar Agarwal was

nowhere recorded with the dispute in question. On this ground, the learned

trial court has rejected the petition. The revisional court reversed the order

of the trial court on the ground that the case was still at the stage of before

charge evidence and the Magistrate is empowered to issue summon to any

witness of the complaint and there is no bar of calling any witness, whose

name is not disclosed in the complaint petition. The learned Sessions Judge

while allowing the criminal revision petition relied in the case of Sayeed

Farhana Shamim (supra) and further held that there is no prejudice

caused to the accused. Section 244 Cr.P.C. was the subject matter in the

case of Sunil Mehta & another v. State of Gujarat & another ,

reported in (2013) 9 SCC 209 and while considering Sections 244, 245

and 246 Cr.P.C., the Hon'ble Supreme Court held that the difference lies in

the fact that while the former is a process that is conducted in the absence

of the accused, the latter is undertaken in his presence with an opportunity

to him to cross-examine the witnesses produced by the prosecution.

Paragraph 12 of the said judgment is quoted herein below:

"12. Sections 244 to 246 leave no manner of doubt that once the accused appears or is brought before the Magistrate the prosecution has to be heard and all such evidence as is brought in support of its case recorded. The power to discharge is also under Section 245 exercisable only upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges in terms of Section 246 has to be exercised on the basis of the evidence recorded under Section 244. The expression "when such evidence has been taken" appearing in Section 246 is significant and refers to the evidence that the prosecution is required to produce in terms of Section 244(1) of the Code. There is nothing either in the provisions of Sections 244, 245 and 246 or any other provision of the Code for that matter to even remotely suggest that evidence which the Magistrate may have recorded at the stage of taking of cognizance and issuing of process against the accused under Chapter XV tantamounts to evidence that can be used by the Magistrate for purposes of framing of charges against the accused persons under Section 246 thereof without the same being produced under Section 244 of the Code. The scheme of the two Chapters is totally different. While Chapter XV deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof with or without investigation and inquiry, Chapter XIX Part B deals with trial of warrant cases instituted otherwise than on a police report. The trial of an accused under Chapter XIX and the evidence relevant to the same has no nexus proximate or otherwise with the evidence adduced at the initial stage where the Magistrate records depositions and examines the evidence for purposes of deciding whether a case for proceeding further has been made out. All that may be said is that evidence that was adduced before a Magistrate at the stage of taking cognizance and summoning of the accused may often be the same as is adduced before the court once the accused

appears pursuant to the summons. There is, however, a qualitative difference between the approach that the court adopts and the evidence adduced at the stage of taking cognizance and summoning the accused and that recorded at the trial. The difference lies in the fact that while the former is a process that is conducted in the absence of the accused, the latter is undertaken in his presence with an opportunity to him to cross-examine the witnesses produced by the prosecution."

9. Sections 244, 245 and 246 Cr.P.C were again the subject matter in the

judgment rendered by the Hon'ble Supreme Court in the case of Ajoy

Kumar Ghose v. State of Jharkhand & another , reported in (2009)

14 SCC 115. Paragraphs 21 and 51 of the said judgment are quoted herein

below:

"21. However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) CrPC, the Magistrate has to hear the prosecution and take all such evidence as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) CrPC on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) CrPC, whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) CrPC. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity.

51. The right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses, who have been offered at the stage of Section 244(1) CrPC. The accused can show by way of the cross-examination that there is no justifiable ground against him for facing the trial and for that purpose the prosecution would have to offer some evidence. While interpreting this section, the prejudice likely to be caused to the accused in his losing an opportunity to show to the court that he is not liable to face the trial on account of there being no evidence against him, cannot be ignored."

10. In the case in hand, the trial court has given a well reasoned order of

not calling Arun Kumar Agarwal. There is no doubt that discretion with the

learned Magistrate is there of calling any witness and that is required to be

used cautiously and not for mala fide purpose to harass the accused. In the

case of Sayeed Farhana Shamim (supra) on which judgment the

revisional court has allowed the criminal revision petition, it has been

discussed in paragraph 11, which is quoted herein below:

"11. Before we refer to decisions of various High Courts, it may be mentioned here that the discretion of the Magistrate is nowhere fettered by any of the provisions contained in CrPC. Section 244 CrPC reads as under:

"244. Evidence for prosecution.--(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."

The expression used is, "the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution". Similarly, sub-section (6) of Section 246 CrPC reads as under:

"(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross- examination and re-examination (if any), they shall also be discharged."

The expression used is, "the evidence of any remaining witnesses for the prosecution shall next be taken". Therefore, the Magistrate has discretion, before he closes the trial, to summon the witnesses if it advances the cause of justice. Here we want to say a word of caution that the discretion which has been conferred on the Magistrate under Section 244(2) and Section 246(6) CrPC should be used in appropriate cases for reasons to be recorded. The discretion should not be used fancifully and for a mala fide purpose to harass the accused. It is quite possible that sometimes when the complainant fails to substantiate the allegation, he may resort to dilatory tactics and thereby harass the accused by giving supplementary list to prolong the continuance of the case. This should be checked but in case it is found that in fact the application for summoning the additional witnesses is made for bona fide purpose and to substantiate the allegations made in the complaint, then the Magistrate may exercise such power in appropriate case."

11. In view of paragraph 11 of the Sayeed Farhana Shamim (supra)

and other judgments, as discussed herein above, it transpires that the

complainant has tried to fill up the lacuna and caused serious prejudice to

the defence of the accused. Accordingly, the impugned order dated

14.06.2019 passed in Criminal Revision No.47 of 2019, arising out of C.P.

Case No.2032 of 2015 passed by the learned Principal District & Sessions

Judge, Dhanbad is, hereby, set aside and the order dated 05.01.2019

passed by the learned Judicial Magistrate, 1 st Class, Dhanbad in C.P. Case

No.2032 of 2015 is, hereby, confirmed.

12. Accordingly, this petition stands allowed and disposed of.

(Sanjay Kumar Dwivedi, J.) Ajay/