Punjab-Haryana High Court
Gulshan Kumar vs State Of Haryana And Another on 25 April, 2024
Neutral Citation No:=2024:PHHC:062323
CRM-M-8978-2017(O&M) -1-
2024:PHHC:062323
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
126 CRM-M-8978-2017(O&M)
Reserved on: 15.04.2024
Date of Pronouncement:25.04.2024
GULSHAN KUMAR .....Petitioner
VERSUS
STATE OF HARYANA AND ANOTHER
.....Respondents
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Ashit Malik, Advocate
for the petitioner.
Mr. Bhupender Singh, DAG, Haryana.
Mr. D.K.Tuteja, Advocate,
for respondent no.2-complainant.
KULDEEP TIWARI. J.
1. The petitioner, who is facing trial as an accused in FIR
No.493, dated 30.10.2008, under Sections 420, 466, 467, 468 and 471 of
the IPC , registered at Police Station Civil Lines, Rohtak, District Rohtak,
as well as in a private complaint dated 11.06.2006, under Sections 420,
466, 467, 468 and 471 of the IPC, throws challenge to the order
01.03.2017 (Annexure P-8) passed by the Judicial Magistrate Ist Class,
Solanki, Rohtak, (hereafter referred to as 'the learned trial court
concerned'), whereby the third application preferred under Section 311
Cr.P.C. by the prosecution, has been allowed. This caused grievance to
the present petitioner/accused, and propelled him to invoke the inherent
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powers of this Court as envisaged under Section 482 of the Cr.P.C. for
quashing of impugned order (supra).
BRIEF FACTS
2. Before proceeding to evince any opinion upon the legality of
the impugned order, it deems imperative to deal with the facts in detail as
the case has its chequered history.
3. In the instant case a complaint was filed by respondent no.2-
Ramesh Chander, who alleged therein that he was owner of 2/5 th share in
shops No.361 to 367, Quilla Road, Rohtak, i.e.18 sq.yards, out of 45
sq.yards and the co-accused-Krishan Lal, who was owner of 1/5th share
i.e. 9 sq.yards, out of 45 sq.yards, vide sale deed no.5156, dated
06.01.1982, however, he forged the said sale deed and projected himself
to be owner of entire 45 sq.yards, and obtained a loan of Rs.10 lacs.from
Canara Bank. It was also alleged by him that from the certified copy of
the said sale deed he found that relevant page of the original record was
torn. Hence, respondent no.2-complainant filed a complaint for taking
action against Krishan Lal, and other concerned officials, of the revenue
department.
4. On the basis of the above complaint, an FIR was registered
as mentioned above, besides that respondent no.2-complainant filed a
separate private complaint against the present petitioner and other co-
accused with similar allegations before the JMIC, Rohtak.
5. The petitioner and co-accused earned acquittal in both; the
complaint case; and the FIR, vide verdicts of acquittal dated 18.04.2014
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(Annexure P-2), and 31.03.2015 (Annexure P-3) respectively, passed by
the learned trial Court concerned.
6. This caused grievance to respondent no.2-complainant,
therefore he preferred an appeal against the verdicts of acquittal (supra)
before the appellate court concerned. He remained successful in that as
the appeal was partly allowed, and the matter was remanded back to the
learned trial Court concerned, with a direction to club both, the complaint
case as well as FIR case, and to decide afresh after examining Ramesh,
Shakuntala Devi, and cross-examining of ASI Parkash Chand.
7. Thereupon, respondent no.2-complainant preferred an
application under Section 311 Cr.P.C. for examination of Ramesh
Chander and Shakuntala Devi, that application was allowed by the
learned trial Court. Again third application under Section 311 Cr.P.C.was
moved by the prosecution for tendering several documents as additional
documents and vide impugned order (supra), the said application was
allowed, which is under challenge before this Court.
SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
8. Learned counsel for the petitioner submits that the appellate
court had partially allowed the appeal filed by respondent no.2-
complainant, remanded the case to the learned trial Court concerned, and
only permitted to examine Ramesh Chander, and his wife Shakuntala
Devi, and allowed cross-examination of ASI Parkash Chand.
9. He further submits that the trial court concerned, has no
power to entertain fresh application under Section 311 Cr.P.C. as the
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remand was only for a limited purpose.
10. He further submits that earlier also an application filed by the
complainant under Section 311 Cr.P.C. for examination of complainant-
Ramesh Chander and Shakuntala Devi, was rejected as well as the
statutory revisional court also upheld the order passed by the learned trial
Court concerned, however, these two orders were never brought to the
knowledge of the learned first appellate Court, which led to passing of
the remand order with directions of examination of complainant-Ramesh
Chander, Shakuntala Devi and cross-examine Parkash Chand.
11. He further submits that there is no provision under Section
311 Cr.P.C. which could empower any court in allowing the tendering
several documents rather the court can only allow any person to be
examined, cross-examine, or re-examine as a witness.
12. Finally, he submits that the documents which were very
much in the knowledge of respondent no.2-complainant, should have
been supplied during investigation to the investigating officer, however,
at the belated stage, when the earlier accused (petitioner herein), earned
acquittal in first round of litigation, these documents cannot be allowed to
be taken on record as this would amount to filling up of lacuna, which is
not the object of Section 311 Cr.P.C.
SUBMISSIONS OF THE LEARNED STATE COUNSEL ASSISTED
BY LD.COUNSEL FOR THE COMPLAINANT/RESPONDENT NO.2.
13. While opposing the submissions made by learned counsel for
the petitioner, learned State counsel assisted by learned counsel for
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respondent no.2 submits that the first appellate court, while remanding
the trial vide order dated 27.04.2016 (Annexure P-5), nowhere prohibits
the filing of application under Section 311 Cr.P.C.
14. They further submit that the learned trial Court concerned, in
fact not only exercised its powers under Section 311 Cr.P.C. but also
referring the provisions of section 165 of the Indian Evidence Act
(hereinafter referred to as 'Act'), has allowed the application in question
vide impugned order.
15. They further submit that in fact the learned trial Court
concerned, in principle and basically exercised powers under Section 165
of the Act, allowing respondent no.2-complainant to bring on record
certain documents, which is an independent power of the court and
cannot be questioned through the instant petition.
16. They next submit that the petitioner has nowhere challenged
the power of the learned trial Court concerned, exercised under Section
165 of the Indian Evidence Act, therefore, the instant petition is bereft of
any merits and requests for its dismissal.
ANALYSIS
17. This Court has examined the impugned order (supra)
alongwith the entire record, as well as the detailed submissions made
learned counsel for both the parties.
18. So far as the first submission as made by learned counsel for
the petitioner that the learned first appellate court concerned, vide its
judgment dated 27.04.2016, remanded the matter back to the learned trial
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Court for deciding the matter afresh after recording only the statements of
Ramesh Chander, Shakuntala Devi and cross-examination of ASI Parkash
Chand, therefore, the learned trial Court should not have exceeded to the
mandate of remand and further allow the application under Section 311
Cr.P.C. at belated stage.
19. This Court does not find merits in the above submissions
made by learned counsel for the petitioner, for the reason that once the
learned first appellate court, has remanded back the lis to decide it afresh,
however, with the directions upon the learned trial Court, that the matter
be decided only after recording the statements of Ramesh Chander,
Shakuntala Devi and cross-examination of ASI Parkash Chand, that does
not restrain the learned trial Court to entertain application under Section
311 Cr.P.C. and to adjudicate the same independently.
20. A perusal of the verdict of remand passed by the learned first
appellate Court, dated 27.04.2016, makes it crystal clear that the power of
the learned trial Court, has not been restricted, and therefore, at the time
of deciding the matter afresh it can exercise its powers under Section 311
Cr.P.C. to reach a just decision. The relevant extract of the verdict reads
as under:-
"..................Thus, considering the case law as referred above, above
referred witnesses being material for the just decision of this case A
required to be examined. Considering this situation, the matter in
question stands remanded back to learned trial Court for deciding
the matter afresh after recording the statements of above referred
witnesses. Since complaint case titled as Ramesh v. Krishan Lal is
connected to FIR No.493 dated 30.10.2008, under Sections 420,
466, 467, 468, 471 of IPC, Police Station Civil Lines, Rohtak, as
same facts emerged from the complaint as that of state case,
therefore, the same requires to be decided together with the state
case bearing FIR No.493 dated 30.10.2008. Thus, the findings
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returned by learned trial Court in complaint case titled as Ramesh v.
Krishan Lal also stand set aside with the direction to learned trial
Court to club both the cases together and thereafter to record
evidence as earlier directed and to decide the matter afresh. With
these A observations, present appeals stand allowed............."
21. Now coming to the legality of the impugned order. It is apt to
refer to the grounds on which the application has been filed, which is
attached as Annexure P-6, with the instant petition. Application under
Section 311 Cr.P.C., has been filed by the complainant, through the
public prosecutor. In the application there is only mention about the list
of certified copies of certain documents which they want to place on
record as additional evidence, but there is not even whisper that for what
purpose they want to place on record the certified copies of those
documents. There is not even any reason mentioned which prevented the
complainant (respondent no.2) or the investigating agency, not to bring
on record the same on earlier occasion, i.e. at the time of investigation or
during the earlier trial. Simplicitor, it is the application for placing on
record certain documents.
22. Before, further evincing any opinion regarding validity of the
impugned order it is apt here to catch a glimpse of Section 311 Cr.P.C.,
which reads as under:-
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.
[311-A. Power of Magistrate to order person to give specimen
signatures or handwriting. - If a Magistrate of the first class is
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satisfied that, for the purposes of any investigation or proceeding
under this Code, it is expedient to direct any person, including an
accused person, to give specimen signatures or handwriting, he may
make an order to that effect and in that case the person to whom the
order relates shall be produced or shall attend at the time and place
specified in such order and shall give his specimen signatures or
handwriting:
Provided that no order shall be made under this Section
unless the person has at some time been arrested in connection with
such investigation or proceeding.]
23. A studied survey of the hereinabove extracted Section
explicates that it carries two parts, inasmuch as, in the first part occurs the
word 'may', while in the second part occurs the word 'shall'. Since the
first part carries the word 'may', therefore, it endows discretionary power
to a criminal court, besides empowers it to, at any stage of enquiry, trial
or other proceedings under the Code, summon any person as a witness,
or, to examine any person in court, or, to recall and re-examine any
person, whose evidence has already been recorded. However, the
existence of the word 'shall' in the second part, imposes an obligation
upon Court to take any of the above measures, if evidence of such a
person is necessary for just decision of the case.
24. The Courts must examine an "essential" witness, under
Section 311 of the Cr.P.C., only to arrive at a just decision and not to aid
either the prosecution or the accused. Section 311 of the Cr.P.C. cannot
be used as a tool by the litigants to fill up the lacunae in their evidence,
otherwise, there would be no end to a trial.
25. The Hon'ble Supreme Court, in its judgment rendered in
"Hanuman Ram V/s The State of Rajasthan and Ors.", Criminal
Appeal No.1597 of 2008 (Arising out of S.L.P. (Crl.) No.7382 of
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2007), Decided on: 13.10.2008, has dealt with the object of Section 311
of the Cr.P.C. The relevant paragraphs of the judgment (supra) are
extracted hereinafter:-
"7. The object underlying Section 311 of the Code is
that there may not be failure of justice on account of mistake of
either party in bringing the valuable evidence on record or leaving
ambiguity in the statements of the witnesses examined from either
side. The determinative factor is whether it is essential to the just
decision of the case. The section is not limited only for the benefit
of the accused, and it will not be an improper exercise of the
powers of the Court to summon a witness under the Section merely
because the evidence supports the case for the prosecution and not
that of the accused. The section is a general section which applies
to all proceedings, enquiries and trials under the Code and
empowers Magistrate to issue summons to any witness at any stage
of such proceedings, trial or enquiry. In Section 311 the significant
expression that occurs is "at any stage of inquiry or trial or other
proceeding under this Code". It is, however, to be borne in mind
that whereas the section confers a very wide power on the Court on
summoning witnesses, the discretion conferred is to be exercised
judiciously, as the wide the power the greater is the necessity for
application of judicial mind.
9. The object of Section 311 is to bring on record
evidence not only from the point of view of the accused and the
prosecution but also from the point of view of the orderly society.
If a witness called by Court gives evidence against the complainant
he should be allowed an opportunity to cross-examine. The right to
cross-examine a witness who is called by a Court arises not under
the provision of Section 311, but under the Evidence Act which
gives a party the right to cross- examine a witness who is not his
own witness. Since a witness summoned by the Court could not be
termed a witness of any particular party, the Court should give the
right of cross-examination to the complainant........."
26. On the touchstone of the above law laid down by the Apex
Court, I have examined the impugned order also. In the impugned order
there is not even a whisper regarding the relevancy of these documents
which the respondent no.2-complainant wanted to prove on record. There
is no finding by the learned trial Court, that these documents are essential
for the just decision. Even the complainant has not laid any foundation
whereby the learned trial Court, can conclude that the documents are
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essential. Therefore, without laying down any concrete foundation
through the application under Section 311 Cr.P.C., the applicant cannot
compel the learned trial Court to exercise its powers. To lend vigor to
above observation, this Court relies upon the earlier judgment passed by
this Bench in Abhijeet Sharma vs. Mahipal Singh, 2024(1) RCR (Crl.)
692, the observation therein, reads as under:
"7. Moreover, the averments too, as made in the application
(supra) appear to be vague and evasive. It is a trite law that the
power, as envisaged under Section 311 of the Cr.P.C., has to be
cautiously exercised by the learned trial Court concerned, only if it
has reason to believe that the same is essential for just decision of the
case. However, for the learned trial Court concerned to form such a
conclusion for exercise of power (supra), there has to be a concrete
foundation laid by the applicant/accused, who approaches the court
for exercise thereof."
27. Further, the submission made by learned counsel for
respondent no.2-complainant that the trial court concerned, in fact
exercised its powers under Section 165 Indian Evidence Act, instead of
Section 311 Cr.P.C. is not plausible. Though the learned trial court, while
passing the impugned order has made passing reference about the powers
of the trial court envisaged under Section 165 of the Indian Evidence Act,
however, he has not recorded any satisfaction for invoking such powers.
28. There is no dispute that with the aid of Section 165 of the
Indian Evidence Act, 1881, a judge has power to put any question to a
witness or pass an appropriate order for production of any document
which are essential for just decision of a case. However, this power
cannot be exercised as a substitute to Section 311 Cr.P.C.
29. For the ready reference Section 165 of the Indian Evidence
Act, reads as under:-
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"165. Judge's power to put questions or order production.-
The judge may, in order to discover or to obtain proper proof of
relevant facts, ask any question he pleases, in any form, at any time,
of any witness, or of the parties, about any fact relevant or
irrelevant; and may order the production of any document or thing;
and neither the parties nor their agents shall be entitled to make any
objection to any such question or order, nor, without the leave of the
Court, to cross-examine any witness upon any answer given in reply
to any question:
Provided that the judgment must be based upon facts
declared by this Act to be relevant and duly proved :
Provided also that this section shall not authorise any Judge
to compel any witness to answer any question, or to produce any
document which such witness would be entitled to refuse to answer
or produce under sections 121 to 131, both inclusive, if the question
were asked or documents were called for by the adverse party; nor
shall the Judge ask any question which it would be improper for any
other person to ask under section 148 or 149; nor shall he dispense
with primary evidence of any document, except in the cases
hereinbefore excepted."
30. In the impugned order the learned trial court concerned has
nowhere recorded in its judgment that the documents which respondent
no.2-complainant wanted to place on record are relevant in accordance
with Act, and duly proved. Therefore, on this aspect the impugned
judgment/verdict requires interference by this Court.
31. Lastly, it transpires from the record that this is a third
application under Section 311 Cr.P.C. preferred by respondent no.2-
complainant. It is nowhere mentioned in the application so preferred
under Section 311 Cr.P.C., that these documents were not prior in his
knowledge. Even neither at the time of investigation nor at the time
earlier trial these documents were brought on record. Further, respondent
no.2-complainant at the time of investigation or during earlier trial, had
full and had final opportunity to produce whatever material he wanted to
reply upon, but he opted not to do so. During the second round of trial
that too on the third application, respondent no.2-complainant sought to
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bring on record those documents, without even making whisper of their
relevancy. Therefore, in all eventuality this would tantamount to fill up
the lacuna, which cannot be permissible/allowed by way of invoking the
powers under Section 311 Cr.P.C.
32. The above observation lend vigor from the judgment passed
in Mohd. Iqbal Ahmed vs State of Andhra Pradesh, (1979) 4 SCC
172, wherein the Apex Court as under:-
"4..................We are, however, unable to accede to this prayer which
has been made at a very late stage. The prosecution had been
afforded a full and complete opportunity at the trial stage to produce
whatever material it liked and it had chosen to examine two
witnesses, but for reasons best known to it, it did not produce the
note which formed the subject-matter of the Resolution of the
Sanctioning Authority Ex. P16. It is well settled that, in a criminal
case this Court or for that matter any court should not ordinarily
direct fresh evidence to fill up a lacuna deliberately left by the
prosecution. The liberty of the subject was put in jeopardy and it
cannot be allowed to put in jeopardy again at the instance of the
prosecution which failed to avail of the opportunity afforded to it."
33. Similar observation has been made the High Court of
Rajasthan, in M/s Arihand Gems Jewllers Thr.its Proprietor vs. State
of Rajasthan, 2020 (1) NIJ 723, wherein observed as under:-
6. This criminal misc. petition filed by the petitioner-
complainant deserves to be dismissed for the reasons; firstly,
admittedly, the documents which the petitioner-complainant wants
to place on record relate to the year 2010 i.e. prior to filing of
complaint; secondly, evidence of the petitioner-complainant was
closed in the year 2014 and he was also cross-examined on
19.01.2018 and after completion of evidence of both the parties the
matter was fixed for final hearing and at the fag end of trial the
petitioner-complainant filed this application; thirdly, the documents
in question were very much in the knowledge of the petitioner-
complainant and the petitioner-complainant himself was negligent
in not submitting these documents before the court below in time.
FINAL ORDER
34. This Court has no hesitation to record that the impugned
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judgment does not pass the test of legality, and therefore, requires
interference by this Court.
35. Consequently, the instant petition is allowed, and the
impugned judgment (supra), is hereby set aside.
All pending application(s), if any, also stands disposed of.
(KULDEEP TIWARI)
April 25, 2024 JUDGE
dharamvir
Whether speaking/reasoned. : Yes
Whether Reportable. : Yes
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