Jharkhand High Court

Dinesh Kumar Singh vs The State Of Jharkhand on 13 September, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No.1994 of 2024
                                         ------

1. Dinesh Kumar Singh, aged about - 35 yrs, S/o. Ramakant Singh,

R/o. Majhi Tola, P.O. + P.S. - Adityapur, Dist: Seraikella-

Kharswan, Jharkhand, A/P Residing at: House of Raj Kumar Das,

Ashok Path, Mohan Path, Bhatiya Basti, P.O. + P.S. - Kadma,

Jamshedpur, Dist: East Singhbhum, Jharkhand

2. Ramakant Singh, aged about - 77 yrs, S/o. Late S.D. Singh, R/o.

Bank Colony, Near Durga Bhawan, Majhi Tola, Adityapur, P.O. +

P.S. Adityapur, Dist: Seraikella - Kharswan, Jharkhand.

                                                        ...            Petitioners

                                              Versus
            1. The State of Jharkhand

2. Madhu Singh, W/o. Dinesh Kumar Singh, D/o. Rameshwar Singh, R/o. Bank Colony, Near Durga Mandir, Majhi Tola, Nikumb Bhawan, Adityapur, P.O. + P.S.- Adityapur, Dist:

Seraikella - Kharswan A/P/R/o. E.W.S. 13/2, Road No.10, Adityapur -1, P.O. - Adityapur, P.S. - R.I.T. Dist: Seraikella -

                 Kharswan, Jharkhand
                                                        ...           Opposite Parties
                                               ------
             For the Petitioner          : Mr. Abhishek Kr. Dubey, Advocate
             For the State               : Mr. Subodh Kr. Dubey, Addl.P.P.
             For the O.P. No.2           : Mr. Samir Kr. Lall, Advocate
                                                ------
                                          PRESENT
                  HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-      Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the

jurisdiction of this Court under Section 482 of the Code of Criminal Procedure

with a prayer to set aside the order dated 04.08.2022 passed in G.R. Case

No.1148 of 2015 arising out of Adityapur P.S. Case No.398 of 2015 whereby and

where under the learned Chief Judicial Magistrate, Seraikella allowed the

petition filed by the informant forwarded by the Assistant Public Prosecutor for

examining Rupa Singh, Purushhotam Kumar, Somen Mandal including the

Medical Officer; as witnesses.

3. The brief facts of the case is that the petitioners are the accused persons

of the said Adityapur P.S. Case No.398 of 2015 and are facing trial for the

charges involving the offences punishable under Sections 498A, 323, 341 of the

Indian Penal Code. During the trial, the informant- victim filed two petitions

forwarded by the learned Assistant Public Prosecutor for examination of three

witnesses namely Rupa Singh, Purushhotam Kumar and Somen Mandal as

prosecution witnesses though their names were not mentioned in the witness

column of the charge-sheet. It was stated in the petition that Rupa Singh,

Purushhotam Kumar and Somen Mandal, knew about the facts of the

prosecution case. It was also stated in that petition filed by the complainant,

that Sudip Banerjee who was one of the witnesses of the petitioner No.1- who is

the accused person of the case, in original matrimonial Suit No.19/18, has been

cited as a prosecution witness by the police, in collusion with the petitioners by

the Investigating Officer. It was further stated that petition filed by the

complainant that, the prosecution does not intend to examine Shyamji Singh

and Arun Kumar Singh as prosecution witnesses; as they were not reliable. The

learned Chief Judicial Magistrate, Seraikella considering the facts of the case,

vide order dated 04.08.2022 allowed the prayer for examination of the

witnesses.

4. Learned counsel for the petitioner relies upon the judgment of the

Hon'ble Supreme Court of India in the case of Vijay Kumar vs. State of Uttar

Pradesh & Another reported in (2011) 8 SCC 136 and submits that in which

case as the High Court set aside the order passed by the Spl. Judge in a case of

trap involving the offences punishable under Section 7 and Section 13(2) read

with Section 13(1)(d) of the Prevention of Corruption Act, 1988 refusing to

summon one witness staying in U.S.A. as a court witness and directed the Spl.

Judge to summon and examine such witness as a court witness under Section

311 of Cr.P.C; the Hon'ble Supreme Court of India considering the facts of that

case observed that the High Court failed to consider that no case was made out

why the witness concerned should be examined as a court witness and as it

was not mentioned by the High Court in its judgment any reason as to why

examination of the witness concerned as a court witness is necessary and in

that case, as the evidence for the failure on the part of the High Court to

mention as to how the evidence of the witness sought to be examined, is

necessary when the witness concerned was not present at the time when the

bribe was demanded or even at the time when the trap was arranged and laid

and as the High Court arbitrarily in that case exercised the power under Section

311 of Cr.P.C. So, the Hon'ble Supreme Court of India set aside this order of the

High Court.

5. Learned counsel for the petitioner next submits that as in this case also

the learned Chief Judicial Magistrate, Seraikella has not assigned any reason as

to how the evidence of the three witnesses sought to be examined by the

prosecution even though they have not been named as a witness in the relevant

column of the charge-sheet submitted, in the case. Hence, it is submitted that

the impugned order be set aside.

6. Learned Addl.P.P. appearing for the State and the learned counsel for the

opposite party No.2 on the other hand vehemently oppose the prayer of the

petitioners and relying upon the judgment of the Hon'ble Supreme Court of

India in the case of Zahir Habibulla H. Sheikh & Another vs. State of Gujarat

& Others reported in (2004) 4 SCC 158 and submits that in paragraph-44 of the

said judgment, it has been observed by the Hon'ble Supreme Court of India

that Section 311 of Cr.P.C. consists of two parts:-

(i) Giving a discretion to the court to examine the witness at any

stage, and

(ii) The mandatory portion which compels the court to examine a

witness if his evidence appears to be essential to the just decisions

of the court.

7. It is next submitted that in this case as the learned Chief Judicial

Magistrate, Seraikella has in no uncertain manner has mentioned that the

examination of the witnesses are required for just decision of the case. Hence, it

is submitted that there is no illegality committed by the learned Chief Judicial

Magistrate, Seraikella. It is lastly submitted that, this Cr.M.P., being without

any merit, be dismissed.

8. Having heard the rival submissions made at the Bar and after carefully

going through the materials available in the record, it is pertinent to refer to

Section 242 of Cr.P.C. which reads as under:-

"242. Evidence for prosecution.--(1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under Section 241, the Magistrate shall

fix a date for the examination of witnesses:

[Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police.] (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.

(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution:

Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination."

It is pertinent to mention here that Section 242(3) cast a duty upon the

Magistrate to take all such evidence as may be produced in support of the

prosecution and no discretion has been vested upon the Magistrate to refuse to

examine any witness to be produced by the prosecution. In Section 242(2), the

Magistrate has been vested with the power to issue summons to any of its

witnesses of the prosecution on such application being made by the

prosecution. It is needless to mention that the provision of Section 242(3) is

mandatory and the Magistrate is bound to examine all such witnesses as are

produced by the prosecution.

9. It is a settled principle of law that a witness not mentioned in the witness

column of the charge-sheet can also be examined as a witness of the

prosecution but the rider is that the court should give adequate notice to the

accused in case such examination of the witness.

10. The plain reading of Section 242 of Cr.P.C. makes it crystal clear that it is

the duty of the prosecutor to submit application of prosecution witnesses and it

becomes the duty of the court to issue summons to any of such witnesses.

11. Now undisputedly the prosecution case has not yet been closed. During

the prosecution evidence, such witnesses have sought to be examined by the

prosecution. It is the specific case of the prosecution that they know the facts of

the case. Though it has not been specifically mentioned by the learned

Magistrate regarding his source of knowledge but it has been mentioned in the