Punjab-Haryana High Court
Mahavir Mittal vs State Of Haryana on 15 January, 2025
Neutral Citation No:=2025:PHHC:005507
CRM M-1783-2025 -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
134 CRM M-1783 of 2025
Date of Decision: 15.01.2025
Mahavir Mittal ... Petitioner
Versus
State of Haryana ... Respondent
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. Sumit Kalyan, Advocate,
for the petitioner.
N.S.SHEKHAWAT, J. (Oral)
1. The petitioner has filed the present petition under Section
482 Cr.P.C. with a prayer to quash the order dated 16.11.2024
(Annexure P-6) passed by the Court of Additional Sessions Judge,
Rohtak, whereby, two applications filed by the petitioner under
Section 311 Cr.P.C. as well as two other miscellaneous applications
filed by the petitioner have been ordered to be dismissed in a case
arising out of FIR No. 7 dated 23.05.2018 registered under Sections 7
and 9 of Prevention of Corruption Act at Police Station S.V.B.
Rohtak.
2. The brief facts of the case are that one FIR under
Sections 7 and 9 of the Prevention of Corruption Act (hereinafter to
be referred as 'the PC Act') was registered against the present
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petitioner on the basis of the complaint moved by the complainant
with the allegations that his two cases regarding his shop and house
were pending in the Court of Additional District Judge, Rohtak. When
the complainant met the petitioner, who was working in the copy
branch of District Court, Rohtak, for getting some certified copies of
documents, the petitioner falsely told him that the judicial officer was
well known to him and the petitioner demanded a sum of Rs. 20,000/-
from the complainant and the petitioner had taken a sum of
Rs. 18,000/- from him. With these broad allegations, the FIR in the
present case was registered against the petitioner.
3. After the presentation of the challan, the charge under
Sections 7, 9 and 13 of the PC Act was framed against the petitioner
by the Court of Additional Sessions Judge, Rohtak on 26.07.2018 and,
thereafter, the case was listed for prosecution evidence. During the
pendency of the trial, the petitioner moved four applications before
the trial Court and vide the impugned order dated 16.11.2024
(Annexure P-6), all four applications were ordered to be dismissed by
the trial Court.
4. First of all, this Court would deal with two applications
under Section 311 Cr.P.C. moved by the petitioner. The first
application under Section 311 Cr.P.C. (Annexure P-1) was filed by the
petitioner on 29.11.2022 with a prayer to re-examine the complainant
by stating that PW2 Ashok Kumar complainant appeared as a witness
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on 18.07.2019, wherein, he had supported the prosecution case and
stated that the petitioner had demanded bribe and he had paid bribe to
the petitioner. However, during the departmental inquiry held on
22.02.2019, complainant Ashok Kumar (PW2) had turned hostile
and had not supported the case of the prosecution. Consequently, it
was requested that permission may be granted to the petitioner to
re-examine PW2 Ashok Kumar, complainant.
5. Second application under Section 311 Cr.P.C. (Annexure
P-2) was moved by the present petitioner on 21.04.2023 for recalling
PW5 Daya Chand, shadow witness and PW9 Pawan Kumar, Duty
Magistrate for further cross-examination/re-examination. In the
application (Annexure P-2), it was stated that the Additional District
and Sessions Judge, Rohtak, had colluded with his lawyer Mr. J.K.
Gakhar and the statements of PW5 Daya Chand and PW9 Pawan
Kumar were wrongly recorded. In fact, PW5 Daya Chand, shadow
witness had stated in his statement dated 26.02.2020 that they had not
apprehended the petitioner and he was not the same person. However,
the Additional District and Sessions Judge did not dictate this line and
some other line was dictated. Even, his counsel J.K. Gakhar,
Advocate did not raise any objection on the same. When the petitioner
came to know about the same, he took copy of the statement of the
shadow witness from the Court, got it read through his counsel and
came to know that the Additional District and Sessions Judge, had
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removed the said line from the statement and even his lawyer did not
raise any objection to this. Consequently, he wanted to re-examine
PW5 Daya Chand, witness so that truth may prevail in the Court. Still
further, he levelled baseless allegations against the presiding officer
and the Court as well as counsel in this regard. Still further, he stated
that even PW9 Pawan Kumar, Duty Magistrate had also colluded with
the public prosecutor and he had no idea as to how the statement was
recorded. Consequently, the examination-in-chief of PW9 Pawan
Kumar, Duty Magistrate, should also be got conducted in his
presence. He ultimately prayed that the statement of PW9 Daya
Chand, shadow witness and Pawan Kumar, Duty Magistrate should be
recorded afresh, so that justice may be done to him.
6. I have heard learned counsel for the petitioner at length
and perused the record carefully.
7. Before proceeding any further, it would be appropriate to
reproduce Section 311 Cr.P.C., which is 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
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person if his evidence appears to it to be essential to the
just decision of the case."
8. Section 311 empowers the Courts to re-call or re-
examine the person, if evidence appears to be essential for just
decision of the case. The Supreme Court in Rajaram Prasad Yadav
Versus State of Bihar and another, (2013) 14 SCC 461 enunciated
the principles to be considered while dealing with the applications
under Section 311 of Cr.P.C., 1973 read with Section 138 of the
Indian Evidence Act, 1872. The relevant portion is quoted below:-
"23. From a conspectus consideration of the above
decisions, while dealing with an application under
Section 311 Criminal Procedure Code read along with
Section 138 of the Evidence Act, we feel the following
principles will have to be borne in mind by the Courts:
"(a) Whether the Court is right in thinking that the new
evidence is needed by it? Whether the evidence sought to
be led in under Section 311 is noted by the Court for a
just decision of a case?
(b) The exercise of the widest discretionary power under
Section 311 Criminal Procedure Code should ensure that
the judgment should not be rendered on inchoate,
inconclusive speculative presentation of facts, as thereby
the ends of justice would be defeated.
(c) If evidence of any witness appears to the Court to be
essential to the just decision of the case, it is the power
of the Court to summon and examine or recall and
reexamine any such person.
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(d) The exercise of power under Section 311 Criminal
Procedure Code should be resorted to only with the
object of finding out the truth or obtaining proper proof
for such facts, which will lead to a just and correct
decision of the case.
(e) The exercise of the said power cannot be dubbed as
filling in a lacuna in a prosecution case, unless the facts
and circumstances of the case make it apparent that the
exercise of power by the Court would result in causing
serious prejudice to the accused, resulting in
miscarriage of justice.
(f) The wide discretionary power should be exercised
judiciously and not arbitrarily.
(g) The Court must satisfy itself that it was in every
respect essential to examine such a witness or to recall
him for further examination in order to arrive at a just
decision of the case
(h) The object of Section 311 Criminal Procedure Code
simultaneously imposes a duty on the Court to determine
the truth and to render a just decision.
(i) The Court arrives at the conclusion that additional
evidence is necessary, not because it would be
impossible to pronounce the judgment without it, but
because there would be a failure of justice without such
evidence being considered.
(j) Exigency of the situation, fair play and good sense
should be the safe guard, while exercising the discretion.
The Court should bear in mind that no party in a trial
can be foreclosed from correcting errors and that if
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proper evidence was not adduced or a relevant material
was not brought on record due to any inadvertence, the
Court should be magnanimous in permitting such
mistakes to be rectified.
(k) The Court should be conscious of the position that
after all the trial is basically for the prisoners and the
Court should afford an opportunity to them in the fairest
manner possible. In that parity of reasoning, it would be
safe to err in favour of the accused getting an
opportunity rather than protecting the prosecution
against possible prejudice at the cost of the accused. The
Court should bear in mind that improper or capricious
exercise of such a discretionary power, may lead to
undesirable results.
(l) The additional evidence must not be received as a
disguise or to change the nature of the case against any
of the party.
(m) The power must be exercised keeping in mind that
the evidence that is likely to be tendered, would be
germane to the issue involved and also ensure that an
opportunity of rebuttal is given to the other party.
(n) The power under Section 311 Criminal Procedure
Code must therefore, be invoked by the Court only in
order to meet the ends of justice for strong and valid
reasons and the same must be exercised with care,
caution and circumspection. The Court should bear in
mind that fair trial entails the interest of the accused, the
victim and the society and, therefore, the grant of fair
and proper opportunities to the persons concerned, must
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be ensured being a constitutional goal, as well as a
human right."
9. Now adverting to the facts of the present case, this Court
has no hesitation to hold that the averments made by the present
petitioner in the application (Annexure P-2) are on the verge of
contempt. The petitioner has made baseless and vague allegations
against the presiding officer of the Court as well as his counsel. Even,
no reasons have been mentioned as to why the presiding officer of the
Court was against the present petitioner and there is no material to
indicate that whether the statements of witnesses were wrongly
recorded by the Court. Even, he did not spare the public prosecutor of
the Court and has mischievously stated that the public prosecutor had
also colluded with PW9 Pawan Kumar, Duty Magistrate. Thus, the
petition deserves to be dismissed solely on this ground.
10. The petitioner had filed first application (Annexure P-1)
on 29.11.2022 for the re-examination of PW2 Ashok Kumar,
complainant. It was stated that the statement of PW2 Ashok Kumar,
complainant was recorded before the Court on 18.07.2019, wherein,
he had supported the case of the prosecution and clearly stated that
the bribe was demanded and was paid to the present petitioner.
However, it was alleged that in the departmental inquiry held on
22.02.2019, PW2 Ashok Kumar, complainant had not supported the
case of the prosecution. In fact, when the statement of PW2 Ashok
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Kumar, complainant was recorded before the trial Court on
18.07.2019, the present petitioner was represented by a counsel and
had the knowledge of the statement of PW2 Ashok Kumar,
complainant dated 22.02.2019, which was recorded during the
departmental inquiry. Thus, the petitioner had the liberty to confront
PW2 Ashok Kumar, complainant, with his statement, which was
recorded five months ago in the preliminary inquiry.
11. Still further, the statement of PW2 Ashok Kumar,
complainant was recorded on 18.07.2019 and the application under
Section 311 Cr.P.C., for re-examination of PW2 Ashok Kumar,
complainant, was moved after a delay of more than 03 years and 04
months without any justification. The above said first application
under Section 311 Cr.P.C. had been filed by the petitioner rather
belatedly and without any justifiable grounds. The witness, i.e., PW2
Ashok Kumar, complainant was duly cross-examined at length by the
counsel representing the petitioner and the order passed by the trial
Court is not found to be suffering from any infirmity. It is not even the
case of the petitioner that he had not examined the witness at all or
only formal questions were put to PW2 Ashok Kumar, complainant
during cross-examination. Thus, there was no ground for recalling
PW2 Ashok Kumar, at this belated stage for further
cross-examination/re-examination.
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12. Still further, the petitioner moved the second application
(Annexure P-2) under Section 311 Cr.P.C. for re-examination/further
cross-examination of PW5 Daya Chand, shadow witness and PW9
Pawan Kumar, Duty Magistrate. It was wrongly stated that the
presiding officer of the Court had colluded with J.K. Gakhar,
Advocate, counsel for the petitioner and the statement of the
witnesses were not recorded properly. First of all, the petitioner had
moved the first application under Section 311 Cr.P.C.
(Annexure P-1) on 29.11.2022 and by that time, PW5 Daya Chand
and PW9 Pawan Kumar Duty Magistrate had already made their
statements. However, no such prayer for recalling them as witnesses
was made in the first application under Section 311 Cr.P.C., dated
29.11.2022. Consequently, the statements of PW5 Daya Chand and
PW9 Pawan Kumar were also recorded on 26.02.2020 and the
petitioner had come to know from the statements that those were
wrongly recorded by the trial Court. Still, the second application
under Section 311 Cr.P.C. (Annexure P-2) was moved by the
petitioner on 21.04.2023, i.e., after almost 03 years of their
statements. Still further, in the application (Annexure P-2), the
petitioner had levelled false and baseless allegations and no
supporting material was placed on record. It appears that the
petitioner had moved application only with a view to delay the
process of Court and the trial Court had rightly dismissed the
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application with costs of Rs. 1,000/-. Rather in such cases, exemplary
costs should be imposed on such mischievous litigants, who levelled
false and baseless allegations against the presiding officer of the
Court.
13. The petitioner moved the 3rd application on 13.09.2023
(Annexure P-3) for recalling the order dated 26.07.2018, whereby,
charge under Sections 7, 9 and 13 of the PC Act was framed against
the present petitioner. In fact, the averments made in the application
were vague and application for discharge was moved after gap of 05
years of framing of charge sheet against the present petitioner. In the
present case, the Court had framed charge against the petitioner on
26.07.20218 and, thereafter, 09 witnesses were recorded. Thus,
apparently, no such application was maintainable before the trial
Court and the application was totally misconceived and has been
correctly dismissed by the trial Court. There is no provision in Code
of Criminal Procedure/Bharatiya Nagarik Suraksha Sanhita, 2023 for
filing such applications before the trial Court during the dependency
of the trial.
14. Still further, the petitioner had moved the fourth
application (Annexure P-4) under Sections 145, 155 and 155(3) of
Indian Evidence Act and Section 162 Cr.P.C. and certain vague
averments have been made in the application. As per Section 145 of
the Indian Evidence Act, the previous statement of a witness may be
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used for cross-examination. Still further, certain vague averments and
irrelevant averments were made in the application (Annexure P-4) and
the trial Court has rightly dismissed the said application as well.
15. In view of the above discussion, this Court finds no
ground to interfere with the impugned order dated 16.11.2024
(Annexure P-6) passed by the trial Court and the present petition is
ordered to be dismissed.
15.01.2025 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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