Punjab-Haryana High Court
Ravinder Walia vs State Of Haryana And Others on 4 July, 2023
Neutral Citation No:=2023:PHHC:083056
CRM-19991-2023 in/and 2023:PHHC:083056
CRM-M-6203-2020 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CRM-19991-2023 in/and
CRM-M-6203-2020 (O&M)
Reserved on 18.5.2023
Date of Decision: 4.7.2023
Ravinder Walia
....Petitioner
VERSUS
State of Haryana and others
....Respondent(s)
CORAM:- HON'BLE MR. JUSTICE KARAMJIT SINGH
Argued by : Mr. Onkar Singh, Advocate
for the petitioner.
Mr. Vishal Kashyap, DAG, Haryana.
Mr. Sanjiv Kumar Aggarwal, Advocate with
Mr. Tejas Bansal, Advocate,
for respondents No.2 to 4.
*******
KARAMJIT SINGH, J.
Petitioner-Ravinder Walia has filed the present petition under
Section 482 of Cr.P.C. for quashing of order dated 8.1.2020 (Annexure P-
15) passed by the Court of learned Judicial Magistrate, Panipat whereby an
application filed by the petitioner under Section 311 Cr.P.C. for
calling/recalling of the concerned witnesses was rejected in a criminal case
having FIR No.743 dated 15.6.2023 registered under Sections 420, 467,
471, 120-B IPC at Police Station Panipat.
2. Brief facts of the case in nutshell are that the aforesaid FIR was
registered against respondents No.2, 3 and 4 on the basis of the complaint
lodged by Ujaggar Singh (since deceased) wherein he alleged that plot
No.486, Sector 24, Panipat was allotted to his son Sethi Singh by Haryana
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Urban Development Authority (in short, "HUDA") and later on, in August,
2010, Sethi Singh entered into an agreement to sell the said plot and the said
agreement was valid up to 22.10.2020 and in the meantime, Sethi Singh
died on 20.9.2010. After the death of Sethi Singh, the accused persons
showed sympathy to the complainant and offered help to Ujaggar Singh to
get transferred the said plot in his name he being the only legal heir of his
son Sethi singh who was bachelor; that on the pretext of providing the help,
the accused persons took the complainant to the office of Estate Officer on
20.1.2011 and took signatures of the complainant on certain documents with
understanding that the same were required for transfer of plot in question in
the name of the complainant; that later on, complainant-Ujaggar Singh came
to know that the accused persons misused the said signed documents and
got transferred the plot in question in the name of respondent No.3-Sarika
Gupta who is daughter of respondent No.2-K.K.Gupta and both of them
colluded with respondent No.4-Pawan Narang; that in this manner, the
accused persons committed fraud and cheating against complainant-Ujaggar
Singh in order to grab his property. Consequently, FIR was registered in the
present case.
3. After completion of investigation, the police presented the
challan and the trial Court framed charges and then the prosecution led its
evidence and in the meantime, complainant-Ujaggar Singh died. Petitioner-
Ravinder Walia is claiming himself to be a testamentary legal heir of
Ujaggar Singh on the basis of Will dated 7.10.2014. The petitioner was also
cited as a prosecution witness in the challan presented by the police against
the accused persons under Section 173 of Cr.P.C.
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4. During the pendency of the trial, petitioner-Ravinder Walia
claiming himself to be legal heir of complainant-Ujaggar Singh, filed an
application under Section 311 of Cr.P.C. to adduce the following additional
evidence : -
(i) Policy of transfer of ownership of residential
plot/house in case of death of an allottee dated 1.2.2011 framed
by HUDA.
(ii) Instructions issued by Chief Administrator, HUDA
vide memo No.UB-A-3-2011/29566-89 dated 7.9.2011 and
UB-A-3-2011/30963-85 dated 20.9.2011 to all the Estate
Officers with regard to transfer of ownership of residential plot
in case of death of allottee.
(iii) To recall PW3 official of the office of Sub
Registrar-cum-Tehsildar, Panipat to produce original register
maintained in the said office with regard to attestation of
affidavit by Executive Magistrate, Panipat pertaining to
26.7.2011 and 10.6.2011 in order to establish that fictitious
serial numbers were given to the alleged attestation of affidavit
of Ujaggar Singh purported to be executed on 26.7.2011 and
10.6.2011.
(iv) To recall PW8-Vikas Sodhi, Stamp Vendor in
order to prove that as per entry at serial No.3918 dated
8.6.2011, the alleged stamp paper worth ` 10/- was sold in the
name of Ujain Singh and not in the name of Ujaggar Singh.
(v) To place on record certified copy of document
Ex.D18, as has been marked in the testimony of respondent
No.2-K.K.Gupta who appeared as a witness in the civil suit
titled as Ujaggar Singh v. Sarika Gupta and another.
(vi) Memo No.A-3/2011/7951 dated 7.6.2011 signed
by Prem Chand, Estate Officer, HUDA who had already
relinquished his charge on 5.6.2011.
(vii) To place on record entry dated 7.6.2011 of
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dispatch register maintained in the office of Estate Officer,
HUDA, Panipat.
(viii) Certified copies of sale deeds having Wasika
No.5584 and 5606 which were registered by the petitioner
while exercising powers of Sub Registrar, Fazilka on 20.1.2011
in order to prove that the petitioner was not present in the area
of Panipat on 20.1.2011.
The application was contested by the accused persons who filed
their reply.
5. After hearing both the parties, learned trial Court dismissed the
aforesaid application filed by the petitioner under Section 311 of Cr.P.C.
vide order dated 8.1.2020. Being aggrieved, the petitioner has filed the
present petition.
6. Counsel for the petitioner has submitted that the petitioner
being legal heir of the complainant is duly authorised to file an application
under Section 311 of Cr.P.C.. It has been further contended that the
documents which the petitioner intends to place on record are necessary for
just decision of the case. He has further submitted that the Higher Courts
have time and again reiterated that the trial Court has got vast powers under
Section 311 of Cr.P.C. in order to unfold the truth and the said power could
be exercised at any stage of the trial if the concerned evidence appears to be
an essential for just decision of the case. In support of his arguments,
counsel for the petitioner has placed reliance upon the recent judgment
passed by Hon'ble Supreme Court in Varsha Garg v. State of M.P. And
others, 2022 SCC Online (SC) 986 and the decision given by Coordinate
Bench of this Court dated 29.3.2023 passed in CRM-M-52970-2022 titled
Bennet Coleman and Company Limited v. State of Haryana and others.
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7. Present petition is resisted by the counsel appearing on behalf
of respondents No.2 to 4 who has submitted that the petitioner has got no
locus standi to file the present petition as well as the application under
Section 311 of Cr.P.C. He has further contended that alleged Will dated
7.10.2014 was forged by the petitioner in his favour by misusing the official
power as at the relevant time the petitioner was serving as a revenue officer
in the State of Punjab. He has further submitted that the petitioner is
claiming himself to be testamentary legal heir of complainant-Ujaggar
Singh and in this regard, the petitioner filed civil suit and the same was
dismissed by the Court of Civil Judge, Senior Division, Panipat vide
judgment and decree dated 24.8.2018 (Annexure R-2) and the Civil Court
disbelieved Will dated 7.10.2014 propounded by the petitioner. It has been
further contended that the plea taken by the complainant that respondents
No.2 to 4 committed fraud by getting transferred the plot in question in the
name of respondent No.3-Sarika Gupta was also brushed aside by the Civil
Court while passing judgment Annexure R-2. Counsel for respondents No.2
to 4 has further contended that even the appeal filed by the petitioner being
legal heir of Ujaggar Singh has also been dismissed by the first appellate
Court vide judgment dated 8.11.2021 (Annexure R-3) and being not
satisfied, the petitioner has filed RSA-2725-2022 wherein notice of motion
has been issued vide order Annexure A-4. It has been further contended that
the evidence which the petitioner intends to lead by invoking the provisions
of Section 311 Cr.P.C. is not at all required for just and proper decision of
the case. It is further contended that effective and proper opportunity was
availed by the prosecution as well as the complainant to examine PW8-
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Vikas Sodhi, Stamp Vendor and PW3-concerned official of the office of
Sub Registrar-cum-Tehsildar, Panipat. It has been further contended that
concerned documents were in the knowledge of the petitioner at the relevant
time when the prosecution was adducing its evidence but at that time, the
petitioner remained silent and the application in question was filed at a
belated stage by the petitioner in order to prolong the proceedings which
was already pending since 2012. Counsel for respondents No.2 to 4 has
further contended that the learned trial Court rightly dismissed the
application moved by the petitioner under Section 311 of Cr.P.C.. In support
of his contentions, counsel for respondents No.2 to 4 has placed reliance on
judgments passed by this Court in Jaswant Rai v. State of Punjab, 2013(1)
RCR (Criminal) 256, Baljinder Singh @ Kaka v. State of Punjab and
another 2021 Criminal Law Journal 3696 and Rajwinder Kaur v.
Davinderjit Singh and others 2021 ACD 352.
8. I have considered the submissions made by the counsel for the
parties.
9. Section 311 of Cr.P.C. is reproduced below : -
311. Power to summon material witness, or examine person
present. Any Court may, at any stage of any inquiry, trial or
other proceeding under this Code, summon any person as a
witness, or examine any person in attendance, though not
summoned as a witness, or. recall and re- examine any person
already examined; and the Court shall summon and examine or
recall and re- examine any such person if his evidence appears
to it to be essential to the just decision of the case.
10. Hon'ble Supreme Court has time after time enunciated the
ambit of section 311 of Cr.P.C. In Criminal Appeal No.1345 of 2011; Vijay
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Kumar v. State of U.P. and another decided on 3.8.2011, Hon'ble
Supreme Court observed that there is no manner of doubt that the power
under Section 311 of Cr.P.C. is a vast one. This power can be exercised at
any stage of the trial. Such a power should be exercised provided the
evidence which may be tendered by a witness is germane to the issue
involved, or if proper evidence is not adduced or relevant material is not
brought on record due to any inadvertence. It hardly needs to be emphasized
that such power should be exercised for just decision of the case. The wide
discretion conferred on the Court under Section 311 Cr.P.C. must be
exercised judiciously. Whether to exercise such power or not, would largely
depend upon the facts and circumstances of each case.
11. The aforesaid view was reiterated by Hon'ble Supreme Court
in Criminal Appeal No.15 of 2019 decided on 4.1.2019, Swapan Kumar
Chatterjee v. Central Bureau of Investigation and further in Varsha
Garg's case (supra).
12. In Manju Devi v. State of Rajasthan; 2019 SCC Online (SC)
552, Hon'ble Supreme Court noted that an application under Section 311 of
Cr.P.C. could not be rejected on the sole ground that the case had been
pending for an inordinate period of time. Hon'ble Apex Court observed that
duration of a case cannot displace the basic requirements of ensuring just
decision after taking all the necessary and material evidence on record.
13. In Mina Lalitha Baruwa v. State of Orissa and others;
(2013) 16 SCC 173. Hon'ble Apex Court observed that the power conferred
under Section 311 of Cr.P.C. is a power given to the Court not to be merely
exercised at the bidding of anyone party/person but the power conferred and
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discretion vested is to prevent any irretrievable or immeasurable damage to
the cause of the society, public interest and miscarriage of justice. Recourse
may be had by Courts to power under this section only for the purpose of
discovering relevant facts or obtaining proper proof of such facts as are
necessary to arrive at a just decision of the case.
14. Now adverting to the facts of the present case, it is evident that
the petitioner is claiming right in the plot in question being testamentary
legal heir of Ujaggar Singh who succeeded the said property on the death of
his son Sethi Singh. Admittedly, the issue regarding genuineness of Will
dated 7.10.2014 stated to be executed by Ujaggar Singh in favour of the
petitioner is pending before High Court in RSA-2725-2022. Hon'ble Apex
Court in K. Jagadish v. Udaya Kumar G.S.; (2020) 14 SCC 552 has
observed that in such like cases, civil as well as criminal remedies co-exists.
In the present case, it is not disputed that the petitioner was cited as a
prosecution witness. Coordinate Bench of this Court in Bennet Coleman's
case (supra) has clearly observed that for purpose of filing application under
Section 311 Cr.P.C., it is not necessary that the applicant has to be either the
complainant or victim or a listed witness. In the given circumstances, this
Court is of the view that the petitioner, who is claiming right over the plot in
dispute being testamentary legal heir of Ujaggar Singh has got locus standi
to file the application under Section 311 of Cr.P.C..
15. Now it is to be seen that the evidence which the petitioner
intends to adduce with the aid of Section 311 Cr.P.C. is essential and
necessary and is required for just decision of the case. The case of the
prosecution is that complainant-Ujaggar Singh never gave any application,
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affidavit or his consent to transfer the plot in question in favour of
respondent No.3-Sarika Gupta and that the concerned documents were
manipulated by the accused persons. In order to prove its case, the
prosecution/complainant has placed reliance upon the relevant entries of the
registers of stamp vendor and SDM/Executive Magistrate, Panipat
respectively. As per petitioner, the prosecution failed to properly examine
PW3 and PW8 due to inadvertence, in order to bring the truth before the
trial Court. This Court is of the view that PW3 and PW8 could be recalled
along with concerned registers for their further examination-in-chief or re-
examination by the prosecution/complainant in order to get answers of the
some of the questions that left un-answered during the trial. With regard to
other documents which the petitioner intends to produce by way of
additional evidence, learned trial Court can take judicial notice of the
concerned policy dated 1.2.2011 and instructions dated 7.9.2011 and
20.9.2011 framed/issued by HUDA and its Chief Administrator.
16. In view of above, the impugned order is set aside and the
application filed by the petitioner under Section 311 of Cr.P.C. is partly
allowed and the learned trial Court is directed to recall PW3 official of the
office of SDM-cum-Executive Magistrate, Panipat and PW8-Vikas Sodhi,
Stamp Vendor along with concerned record for their further examination-in-
chief on behalf of the prosecution/complainant with liberty to the defence
counsel to further cross-examine both the said witnesses to the extent of
further examination-in-chief. The learned trial Court could take judicial
notice of policy dated 1.2.2011 and instructions dated 7.9.2011 and
20.9.2011 at the time of passing final judgment in the case. The petitioner
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could produce certified copies of sale deeds bearing Wasika No.5584 and
5606 dated 20.1.2011 which were registered in the office of Sub-Registrar,
Fazilka.
17. The present petition stands disposed of in the aforesaid terms.
18. Parties are directed to appear before the learned trial Court on
26.7.2023.
19. However, nothing observed hereinabove is to be construed as
expression of opinion on the merits of the main criminal case which is
pending in the learned trial Court.
( KARAMJIT SINGH )
JUDGE
July 4, 2023
Paritosh Kumar
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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