Punjab-Haryana High Court
State Of Haryana vs Asman And Anr on 16 March, 2022
CRM-M-11894-2018 and another -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. CRM-M-11894-2018
Date of decision: March 16, 2022
State of Haryana
....Petitioner
Versus
Asman and another
....Respondents
2. CRM-M-13067-2018
State of Haryana
....Petitioner
Versus
Jasbir
....Respondent
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present: Mr. Deepak Sabharwal, Additional A.G., Haryana.
for the petitioner.
Ms. Samridhi Sareen, Advocate
for the respondent (in CRM-M-13067-2018)
ARVIND SINGH SANGWAN, J.
This order will decide the above mentioned two petitions.
Prayer in both the petition is for setting aside the orders dated
31.10.2017 and 21.11.2017 passed by the ACJM, Bhiwani in case titled
'State Vs. Asman and another' and 'State Vs. Jasbir, whereby the name of
witness No.9, i.e. Reader to the District Magistrate, Bhiwani has been struck
off from the list of witnesses and the name of Shri Pankaj, the then District
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Magistrate, Bhiwani was ordered to be added in the list of witnesses and he
was further summoned to appear as a witness.
Brief facts of the case are that an FIR was registered against the
respondent accused under Section 25 of the Arms Act in Police Station
Sadar Bhiwani, District Bhiwani for keeping in possession a country made
pistol of .315 bore, along with 8 live cartridges without having any permit
or license. Since it was a requirement of the Arms Act that before
prosecuting the accused sanction for prosecution should be obtained from
the concerned District Magistrate, being the competent authority, the
sanction for prosecution was allowed by the District Magistrate. The learned
State counsel has further submitted that the sanction order was attached
along with the report submitted under Section 173(2) Cr.P.C. and the Reader
to the District Magistrate, Bhiwani was cited as a witness in the list of
witnesses attached with the challan as sanction, being a public document,
can be formally proved by the Reader of the District Magistrate.
Learned State counsel has further submitted that on 31.10.2017,
without there being any application by the respondent-accused or any
request by the State, the ACJM, Bhiwani suo motu passed the following
order :-
"Hence, the name of witness No.9-Reader to District
Magistrate is ordered to be struck off the list of
witnesses. Instead, the name of Sh. Pankaj, District
Magistrate is ordered to be added the list of witnesses.
PWs including the concerned District Magistrate be
summoned for next date of hearing i.e. 18.12.2017."
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Learned State counsel has further argued that, thereafter, the
said order was challenged before the Court of Sessions. However, the same
was dismissed by observing that the order, being an interlocutory order, in
terms of Section 397(2) Cr.P.C. and, therefore, the revision is not
maintainable. The State counsel further submit that there would be no
adjudication on merits by the revisional Court and as the revision petition
was dismissed, being not maintainable.
On merits, learned State counsel has submitted that the
impugned order is illegal against law and facts and the trial Court without
any formal application by the accused or the prosecution has deleted the
name of the Reader to District Magistrate, Bhiwani from the list of
witnesses and rather has summoned the District Magistrate himself to
appear and prove the order.
Learned counsel further submit that the sanction order is a
public document under Section 74(1)(iii) of the Evidence Act and can be
proved by the Reader to District Magistrate, being a public document as per
Section 78 of the Evidence Act, which provides that the order passed by the
State Government or department of the State Government can be proved
from the record of the department. The counsel further submits that a
certified copy of the sanctioned order prepared under Sections 76/77 of
Evidence Act, can always be proved by production of the original record by
the Reader of the District Magistrate and there was no requirement to
summon the District Magistrate, and, therefore, the impugned order is liable
to be set aside.
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Learned State has referred the judgment of the Hon'ble
Supreme Court titled 'R.S. Singh Vs. U.P. Malaria Nirikshak Sangh and
others' 2011(4) SCC 281, wherein it is held that the Courts ordinarily should
not summon the senior officials of the Court and such practice should be
adopted in exceptional case. In the instant case, since the document is a
public document admissible in evidence, the same can be proved by the
Reader to the District Magistrate, who can bring the original record for the
perusal of the Court.
The learned State counsel has further submitted that as per the
Section 57 of the Evidence Act, the Court can always take the judicial note
with regard to the signature of a government official holding any public
office in the State and since the Deputy Commissioner is holding a public
office in the State, the Court should have drawn a presumption with regard
to the authenticity of the sanction order.
In reply, the counsel for the respondents has raised only one
objection that the presence of District Magistrate is required so as to cross-
examine him on the material available before him on the basis of which he
has applied his mind before granting the sanction.
In reply, the learned State counsel has submitted that the order
itself is self speaking that after proper perusal of all the materials available
on record, the sanction was granted, as per the detail reasons given in the
sanction order itself.
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After hearing learned counsel for the parties, I find merit in the
present petition for the following reasons:-
(a) Neither there was any application by the accused
nor by the State and, therefore, the trial Court was
not justified in suo motu substituting witness
No.9-Reader to the District Magistrate, Bhiwani
with District Magistrate, Bhiwani himself.
(b) The witness No.9, i.e. Reader to District
Magistrate, Bhiwani was cited as a witnesses
only to prove the sanction granted by the District
Magistrate, Bhiwani, being public document.
Since the Reader will bring the original record for
the perusal of the Court as well as for the defence
counsel, who will have a right to cross-examine
this witness for the reasoning given in the order
and material available on record forming basis of
granting sanction there is no justification in
summoning the District Magistrate himself.
(c) Even otherwise the sanction order is a public
document under Section 74(1) (iii) of the Indian
Evidence Act and the certified copy prepared of
under Section 76/77 of the Evidence Act, is
admissible in evidence.
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(d) Even otherwise, if the prosecution do not opt to
cite District Magistrate himself as a witness, it
will give a benefit of doubt to the accused and
defence can always raise an objection that no
right to cross-examine the person, who accorded
the sanction after applying the mind was granted.
In view of the above, this petition is allowed, the impugned
orders dated 31.10.2017 and 21.11.2017 passed by the ACJM, Bhiwani are
set aside. The trial Court will proceed further by summoning witness No.9,
i.e. Reader to the District Magistrate, Bhiwani for recording the evidence.
( ARVIND SINGH SANGWAN )
March 16, 2022 JUDGE
satish
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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