Uttarakhand High Court
Smt. Prem Arora vs M/S Rungta & Sons on 15 September, 2022
IN HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No.1589 of 2022
Smt. Prem Arora .....Applicant
Vs.
M/s Rungta & Sons .....Respondents
Advocate: Mr. Lalit Sharma, Advocate for the applicant.
Hon'ble Sharad Kumar Sharma, J.
In the present C-482 application, the present applicant has put a
challenge to the order dated 20.07.2022, as it has been passed by the court of
Judicial Magistrate, 1st, Rudrapur, District Udham Singh Nagar in Criminal Case
No.3620 of 2018 M/s Rungta & Sons Vs. M/s Innovation Polymers & others,
whereby the application submitted by the present applicant on 13.06.2020,
invoking the provisions contained under Section 311 of Cr.P.C. has been
rejected.
2. The contention of the learned counsel for the applicant is that the
application, which she has filed under Section 311 of Cr.P.C., it became
necessary for her to file the said application in order to summon two witnesses
by invoking Section 311 of Cr.P.C. Simultaneously the said application, itself
basically intended to summon the documents also, which has been given therein,
in the relief clause to the application. There are two reasons for not to accept the
arguments of learned counsel for the applicant.
3. The first reason being that in the proceedings of the trial, she had
already filed her application on 10.01.2020 thereby giving the list of witnesses,
which she wanted to examine in her defence, which included the official of
Bank of Baroda, who was examined too by her. The witnesses were closed on
10.01.2020 and thereafter the prosecution witnesses had commenced. If there
was a propriety of these documents to be summoned, it was all the more
necessary, that the applicant should have filed an appropriate application under
the relevant provisions of Code of Criminal Procedure for summoning the
documents, which would be relevant for the purposes of trial.
4. The provisions of Section 311 of Cr.P.C. cannot be alternatively
adopted as a mode to summon the documents, under the garb of summoning the
witnesses to be examined under Section 311 of Cr.P.C, as two provisions i.e.
Section 91 and Section 311 of Cr.P.C. are independent in its implication and
they cannot be intermingled in their intensions, in a criminal proceedings and
that too when it was a conscious act of the applicant by filing an application on
10.01.2020, giving the list of witnesses whom he wanted to be examined, and if
he has chosen not to summon the witnesses of D.G.M. of Bank of Baroda or In-
charge of G.R.P. Moradabad, which was very well in her knowledge, when she
alleges to have filed a complaint as back as on 06.11.2017 or even at a belated
stage, the alternative recourse to application under Section 311 of Cr.P.C. would
not be tenable.
5. In order to patch up the period, which has been engaged in filing
the application only on 13.06.2022, the counsel for the applicant had orally
argued, that the knowledge of the aforesaid two documents referred to, in the
application was attributed to the applicant to his knowledge at a belated stage,
but unfortunately in the application filed under Section 311 of Cr.P.C., there is
no decipher, as such as to on what date the applicant could gather the knowledge
of the document, which was being sought to be summoned by invoking the
provisions contained under Section 311 of Cr.P.C. contrary to the provisions of
Section 91 of Cr.P.C.
6. The Code of Criminal Procedure with its specific intension to meet
the procedural exigency, which a Court may face during the conduct of trial has
provided different set of provisions governing the procedural law. Chapter 7 of
the Code of Criminal Procedure prescribed for Section 91 of the Cr.P.C. Section
91 of the Cr.P.C. if it is take into consideration, it is an exclusive exercise of
powers by the court or an Officer In-charge of the Police Station necessitating
any party to produce any document or any other thing, which may be desirable
for the purposes of investigation or trial. Meaning thereby the scope of Section
91 of Cr.P.C. is only limited for the purposes of summoning of a document or
other things not persons. Thus, the intension of Section 91 of Cr.P.C. is entirely
an absolute distinct to Section 311 of Cr.P.C. Section 311 of Cr.P.C. falls to be
the part of Chapter XXIV of the Code of Criminal Procedure. Section 311 of
Cr.P.C. is extracted hereunder:-
"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."
7. Section 311 of Cr.P.C. is yet again a power which has been vested
with the Court who may at any stage may enquire into the matter may or
conduct a trial and summon any person or witness. In other words it could be
said that Section 311 of Cr.P.C. is exclusively for the purposes of Chapter XXIV
to summon a person not a thing or a document as provided under Section 91 of
Cr.P.C. Hence, Section 91 of Cr.P.C. has a different legislative intent to be met
with and it cannot be read as to be a substitute to the provisions contained under
Section 311 of Cr.P.C. or vice-a-versa.
8. In that eventuality, this Court is of the view that first of all when the
source of knowledge of the document, is not a fact which has been pleaded in
the application under Section 311 of Cr.P.C., the application filed at a belated
stage, has not been isolatedly rejected on the ground of delay or for an intension
to cause a delay in the proceedings of trial, rather it has been rejected after
giving a conscious consideration of fact, that the defence evidence has already
closed and that the applicant has already filed the list of her witnesses as back as
on 10.01.2020.
9. In that eventuality, the judgment on which the reliance has been
placed by the counsel for the applicant, as rendered by the Coordinate Bench of
Allahabad High Court in C-482 Application No.12409 of 2022 Madhusudan
Shukla vs. State of U.P. and Another, and particularly reference of para 15,
which has been made by the counsel for the applicant, that merely a delay in the
trial or an intention of a delay of trial may not be exclusively taken as to be a
basis for rejecting an application under Section 311 of Cr.P.C. based upon the
principles of the Hon'ble Apex Court, as relied therein to have been rendered in
the matters of Manju Devi Vs. State of Rajasthan as reported in (2019) 6 SCC
203, the same would not be tenable to be applied in the facts and circumstances
of the present case, for the reasons already recorded above.
10. Hence, this Court declines to entertain the C-482 application. The
same is accordingly, dismissed.
(Sharad Kumar Sharma, J.)
15.09.2022
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