Rajasthan High Court

Babulal Singaria S/O Sangram ... vs State Of Rajasthan on 12 January, 2023

Bench: Anoop Kumar Dhand

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

      S.B. Criminal Miscellaneous (Petition) No. 10710/2022

Babulal Singaria S/o Sangram Singh Singaria, Aged About 57
Years, R/o Bheru Gate Kekdi, At Present 21/245, Sukhadia
Nagar, Ajmer, Rajasthan.
                                                            ---Accused-Petitioner
                                      Versus
State Of Rajasthan, Through P.P.
                                                                   ----Respondent

For Petitioner(s)          :     Dr. Mahesh Sharma
For Respondent(s)          :     Mr. Mahendra Meena, PP

        HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Reserved on                              :                        16/12/2022
Pronounced on                            :                        12/01/2023



                                      ORDER

(1)       By way of filing this petition under Section 482 of the

Code of Criminal Procedure (for short "Cr.P.C.") the petitioner has

challenged the impugned order dated 04.11.2022 passed by the

Special Additional Chief Judicial Magistrate (P.C.P.N.D.T. Cases),

Ajmer, (for short "the Trial Court") in case no. 1410/2009 CCIS

No. 4789/2016, by which the application filed by the petitioner

under Section 311 Cr.P.C. for summoning twenty witnesses, has

been rejected.

(2) The counsel for the petitioner sought time on

12.12.2022 to submit copy of entire charge-sheet on the record

and accordingly the same was filed on the record of this matter for

perusal of the statements of the witnesses and other evidence.

                                             (2 of 9)               [CRLMP-10710/2022]


(3)           Brief facts of the case are that on 30.06.2001, First

Information Report (for short "FIR") No. 146/2001 was registered

against the petitioner with Police Station Civil Lines, Ajmer for the

offences under Section 332, 353, 186 of Indian Penal Code (for

short "IPC") by the complainant Altaf Hussain alleging therein that

the meeting of Zila Satarkta Evam Jan Abhaav Abhiyog Nirakaran

Samiti Zila Ajmer (District Vigilance and General Public Grievance

Redressal Committee District Ajmer) started. In the said meeting

Ramswaroop Choudhary Zila Pramukh Ajmer, Kayum Khan

Member Legislative Assembly Masuda (for short "MLA"), Babulal

Singaria MLA Kekri, Rambabu Shubham Nominated Member, Smt.

Usha Sharma Collector, Alok Tripathi Superintendent of Police

Ajmer (for short "S.P."), Vasudev Bhatt Additional S.P. Ajmer and

other public representatives and officers of the other departments

were present. The S.P. Alok Tripathi was supposed to attend

another meeting with higher officers to check the arrangements of

the journey tour of Pakistan President General Musharraf. Hence

the issue of law and order was taken first. Immediately

thereafter, the MLA Kekri Babulal Singaria started raising

allegations against the S.P., Alok Tripathi and raised two-three

months' old issues of the law and order. Hence he was requested

to raise the relevant issues only. In the meanwhile Shri Singaria

said that he has the right to raise the issues in the capacity of

public representative, he slapped and assaulted Alok Tripathi and

tried to manhandle him. By such act, Shri Singaria obstructed in

discharge of public duties.

(4) Upon this report, FIR was registered against the

petitioner and after investigation charge-sheet was submitted

(3 of 9) [CRLMP-10710/2022]

against him for the offences under Section 332, 353 and 186 IPC

with list of forty-four witnesses. After framing of charges, trial

commenced against the petitioner and statements of the various

witnesses were recorded. The Public Prosecutor (for short "PP")

dropped the following twenty witnesses, namely :-

(1) K.K. Sharma son of Shri Jagdish Prasad (2) Rajpal Singh son of Shri Mohan Singh (3) Mohan Lal son of Shri Sant Lal Koli (4) Rambabu Shubham son of Shri Senda Lal Koli (5) Puran Prakash Gaur son of Shri Buddhi Prakash (6) Nirmal Kumar Sharma son of Shri K.K. Sharma (7) Madan Lal son of Shri Jagdish Prasad Koli (8) Gopal Singh son of Shri Mangu Singh (9) Gangaram son of Shri Ramchandra (10) Prabhu Singh Koli son of Shri Hiralal Koli (11) Gopal Singh Rathore son of Shri Chandra Ji (12) Shiv Kishan Ajmera son of Shri Bhagwan Das Ajmera (13) Dudh Singh Chauhan son of Shri Punam Singh Chauhan (14) Ghanshyam Singh son of Shri Chandrabhan Singh (15) Suwalal son of Shri Ramlal Jat (16) Ashok Tripathi son of Shri Triveni Tripathi (17) Vineet Bansal C.O. (North) Ajmer Investigating Officer (18) Umesh Joshi Pulice Superintendent (H.A.) CID (CB) Jaipur (19) Prem Prakash Tank Addl. Superintendent of Police CID (CB) Range Cell, Ajmer (20) Narendra Pratap Singh SHO Police Station Civil Lines Ajmer

During the course of trial, it was found that witnesses Sumer

Singh, G.L. Sharma and Dudh Singh have already expired, hence

their evidence was closed and one witness Rambabu Shubham

appeared in the witness-box on 27.04.2022 but he was neither

able to see nor hear, and hence he was dropped by the Prosecutor

and the prosecution evidence was closed.

(5) At this stage the petitioner submitted an application on

21.10.2022 under Section 311 Cr.P.C. for summoning the above

witnesses. The learned Trial Court rejected the application vide

impugned order dated 04.11.2022 by observing that the witnesses

(4 of 9) [CRLMP-10710/2022]

Dudh Singh Chauhan, G.L. Sharma and Sumer Singh have

expired, hence their summoning was closed and the witness

Rambabu Shubham had appeared in the court but he was not able

to see and hear, hence he was left and the evidence of the

prosecution was closed, and it was observed that the rest of the

witnesses are not eye-witnesses of the incident and they are

simply hearsay witnesses, and the petitioner has not stated in the

application that how the evidence of these witnesses are

necessary for just decision of the case. It was also observed that

the trial is pending against the petitioner since 2004 and the same

is related to the accused who was M.L.A. and as per directions of

Hon'ble Supreme Court, such cases should be heard expeditiously.

(6) Feeling aggrieved by the impugned order dated

04.11.2022, the petitioner has submitted this petition before this

court.

(7) Counsel for the petitioner submitted that these

witnesses are material witnesses and they have not been

produced in evidence to hide the truth. Counsel submitted that

the prosecution has dropped these witnesses without assigning

any reason. Counsel submitted that examination of these

witnesses is necessary for just decision of the case. Counsel

submitted that fair trial is the main object of Criminal Procedure

and it is the duty of the court to ensure that such fairness is not

hampered or threatened in any manner. He submitted that fair

trial entails the interest of the accused, the victim and the society

and, therefore, trial includes the grant of fair and proper

opportunities to the petitioner. In support of his contentions he

(5 of 9) [CRLMP-10710/2022]

has placed reliance on the following judgment of the Hon'ble Apex

Court. :

(i) The State represented by the Deputy Superintendent of Police v.

Tr N Seenivasagan [Criminal Appeal Nos. 231-232/2021 decided on 01.03.2021]

(ii) Varsha Garg v. The State of Madhya Pradesh & Ors 2022 Live Law (SC) 662

(iii) Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd.

              2008 (11) SCC 108

      (iv)    Manju Devi v. State of Rajasthan & Anr
              2019 (2) RLW 1297

      (v)     Sri. Periyaswamy M. v. State of Karnataka by Konankunte Police
              Station

[Criminal Petition No. 6288/2022 decided on 20.07.2022].

He has also placed reliance upon the judgment of

Andhra Pradesh High Court in the case of Seva Swarna Kumari @

Kumaramma and others v. The State of Andhra Pradesh

represented by its Public Prosecutor [Criminal Petition No.

4390/2022 decided on 18.08.2022].

(8) Lastly, learned counsel submitted that appropriate

direction may be issued to the Trial Court to summon these twenty

witnesses who have been dropped by the prosecution.

(9) Per contra, learned PP opposed the arguments raised

by the counsel for the petitioner and submitted that the witnesses

Sumer Singh, G.L. Sharma and Dudh Singh have expired and the

witness Rambabu Shubham appeared before the Trial Court on

27.04.2022 but he was unable to see and hear, hence he was

dropped and discharged by the prosecution. Learned PP

submitted that rest of the witnesses were not present at the place

of occurrence and they are hearsay witnesses, they simply heard

about the occurrence, hence the prosecution deemed it just and

proper to drop these witnesses. He further submitted that

(6 of 9) [CRLMP-10710/2022]

evidence of such hearsay witnesses is not essential for just

decision of the case, hence the Trial Court has not committed any

error in rejecting the application filed by the petitioner under

Section 311 of Cr.P.C..

(10) Heard and considered the rival submissions made at

the Bar and perused the material available on the record.

(11) Perusal of the material available on the record indicates

that in the meeting conducted on 30.06.2001 several persons

namely, Ramswaroop Choudhary Zila Pramukh Ajmer, Kayum

Khan Member Legislative Assembly Masuda, Rambabu Shubham

Nominated Member, Smt. Usha Sharma Collector, Alok Tripathi

Superintendent of Police Ajmer, Vasudev Bhatt Additional S.P.

Ajmer and some public representatives and officers of the other

departments were present, and statements of these persons and

other persons present in the said meeting have already been

recorded and they have already been cross-examined by the

petitioner. The eye-witnesses Dudh Singh, Sumer Singh and G.L.

Sharma have already expired. The eye-witness Rambabu

Shubham appeared in the witness-box on 27.04.2022 but he was

not in a position to see and hear, hence he was dropped by the

prosecution and evidence of the prosecution was closed on

23.09.2022. At this stage the petitioner submitted an application

under Section 311 Cr.P.C. for summoning twenty witnesses named

above.

(12) Bare reading of the statements of the dropped

witnesses indicates that they were not present on the spot and

they are tale-tell witnesses and they have simply heard about the

incident from others. The statements of almost all material

(7 of 9) [CRLMP-10710/2022]

witnesses have already been recorded and they have been cross-

examined by the petitioner.

(13) In order to enable the court to find out the truth and

render a just decision, the salutary provisions of Section 311 are

enacted whereunder any court by exercising its discretionary

authority at any stage of inquiry, trial or other proceeding can

summon any person as witness or examine any person in

attendance though not summoned as a witness or recall or re-

examine any person already examined who are expected to be

able to throw light upon the matter in dispute. The object of the

provision as a whole is to do justice not only from the point of

view of the accused and the prosecution but also from the point of

view of an orderly society. This power is to be exercised only for

strong and valid reasons and it should be exercised with caution

and circumspection. Recall is not a matter of course and the

discretion given to the court has to be exercised judicially to

prevent failure of justice. Therefore, the reasons for exercising this

power should be spelt out in the order.

(14) In Vijay Kumar v. State of U.P., (2011) 8 SCC 136, the

Hon'ble Supreme Court while explaining scope and ambit of

Section 311 has held as under :-

"17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously."

                                         (8 of 9)                [CRLMP-10710/2022]


(15)       In Zahira Habibullah Sheikh (5) Anr v. State of Gujarat

& Ors, (2006) 3 SCC 374, the Hon'ble Apex Court has considered

the concept underlining under Section 311 as under :-

"27. 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 of 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 the 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 any 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 wider the power the greater is the necessity for application of judicial mind.""

(16) Similar view has been taken by the Hon'ble Apex Court

in the case of Ratanlal v. Prahlad Jat & Ors (2017) 9 SCC 340, that

the powers contained under Section 311 Cr.P.C., should be

exercised only for strong and valid reasons and it should be

exercised with caution. But here in this case, no reason has been

explained by the petitioner that how and in what manner the

examination of the dropped out witnesses is necessary for just

decision of the case. Their statement indicates that they were not

present on the spot and they have not seen the occurrence and

they have simply heard about the incident. Hence, in the

considered opinion of this court, summoning of such tale-tell

witnesses is not necessary for adjudication and just decision of the

instant case. The judgments cited by the counsel for the

petitioner are not applicable in this case.

                                                                             (9 of 9)                [CRLMP-10710/2022]


                                   (17)         In view of the discussion made hereinabove, this court

is of the view that the Trial Court has not committed an error in

rejecting the application submitted by the petitioner. There is no

infirmity in the impugned order. Hence, this petition is found to be

devoid of merit and accordingly the same is dismissed. So also

the stay application and all applications, pending if any, stand

dismissed.

(18) Before parting with the matter, it is necessary to

observe that the Hon'ble Apex Court in the case of Ashwini Kumar

Upadhyay & Ors v. Union of India & Ors [Writ Petition (Civil) No.

699/2016 decided on 16.09.2020], has issued certain directions in

the matter of inordinately delayed inquiries/investigation and

criminal trials, pending against legislators (sitting or former) and

for expeditious disposal of the pending cases against them. Since

the present matter is also related to former legislator and the

same pertains to the incident occurred in the year 2001, it is

expected from the Trial Court to expedite the trial.