Uttarakhand High Court
Unknown vs State Of Uttarakhand on 15 April, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
Judgment reserved on: 05.03.2025
Judgment delivered on: 15.04.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No.1946 of 2019
(Under Section 482 of Cr.P.C)
Sanjeev Mehrotra
--Applicant
Versus
State of Uttarakhand
--Respondents
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Presence:-
Mr. M.S. Pal, learned Senior Advocate assisted by Mr.
Sachin, learned counsel for the applicant.
Mr. B.C. Joshi, learned AGA along with Mr. Vipul Painuly,
learned Brief Holder for the State.
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Hon'ble Pankaj Purohit, J.
By means of the present C482 application,
applicant-Sanjeev Mehrotra has put to challenge the
judgment and order dated 04.09.2019, passed by learned
Sessions Judge, Nainital in Special Sessions Trial No.1 of
2012, State vs. Sanjeev Mehrotra under Sections 7, 13(1),
13(2) of the Prevention of Corruption Act, 1988, (for short
"the Act, 1988), whereby the application Paper No.179b
moved by the applicant under Section 243/233 Cr.P.C.
was rejected.
2. The facts of the case shorn-off unnecessary
details are that the applicant is facing trial under
Sections 7, 13(1), 13(2) of the Act, 1988 before the
learned Special Judge (P.C. Act), Kumaon Division,
Uttarakhand at Nainital. After examination of the
prosecution witnesses and recording of the statements
under Section 113 Cr.P.C., an application Paper No.179b
purportedly under Section 243/233 Cr.P.C. was moved
by the applicant requesting learned trial court to
summon the XI (eleven) witnesses as defence witness in
his favour. In para 7 of the said application, the name of
the witnesses are mentioned, which is quoted below:-
"1. Shri Brijesh Kumar Sant, District Magistrate.
2. Shri Jai Bharat Singh, Sub-Divisional Magistrate.
3. Shir Yogesh Upadhyaya, Prabhari Chowki In-
charge.
4.Concerned Official from the office of Senior
Superintendant of Police for the year 2012, District
Udham Singh Nagar.
5.Concerned Official from the office of Circle Officer,
P.S. Bajpur, Udham Singh Nagar.
6. Shri Mohd. Kamil, Clerk NagarPanchayat,
Kelakhera.
7.Shri Rakesh Kalra, Shopkeeper-M/s. Pawan
Kirana Store.
8. Shri Badri Dutt Bhatt, Official of Guest House,
Sahkari Sugar Mill, Gadarpur.
9. Shri Anil Kumar, In-charge Chemistry Division,
FSL, Dehradun.
10. Concerned Official of Idea Cellular Ltd., U.P.
West.
11. Shri Mahesh Chandra Sharma, Executive Officer,
Nagar Panchayat, Kelkhera."
3. The applicant stated in the said application
that he was falsely implicated as applicant had taken
stern action against the complainant and had issued
letters dated 14.05.2012, 19.05.2012 & 24.05.2012 to
the complainant for demolition/removal of the illegal
construction made by the complainant. It is further
stated in the said application, that even the Chairman of
Nagar Palika Parishad, Kelakhera had written letter dated
19.05.2012 to the Police Chowki-Kelakhera, Police
Station Bazpur, District Udham Singh Nagar for
providing police force to stop illegal construction made by
the complainant.
4. In para 3 of the said application, it has been
stated that a Civil Suit No.200 of 2012, titled as Sahdat
Hussain vs. Nagar Panchayat, Kelakhera was filed by the
complainant for permanent injunction; suit was already
dismissed vide judgment and order dated 15.09.2017 by
learned Civil Judge (J.D), Bazpur, District Udham Singh
Nagar which was never stayed by any superior courts.
The applicant further submits that he had valid defence
in his favour and there was every likelihood of his
success in the present case. The applicant further stated
in the application that the currency notes seized from
him were different from those which were sent to CFSL,
Dehradun; it was further stated that one of the glass
bottles belonging to the applicant (out of three glass
bottles sent to CFSL, Dehradun) contained white colour
water instead of pink colour water (as per the evidence of
PW4 and PW6). In para 6 of the application, it has been
stated that necessary independent witnesses such as
Shopkeepers of the place from where the applicant was
apprehended and the officials of Guest House where the
applicant was taken after his arrest by the prosecution,
were not at all examined by the prosecution; concerned
official of Idea Cellular Ltd. were not called with call
records of Mobile No.8057681818 belonging to the
applicant in the year 2012 and Mobile No.9639585977
belonging to complainant in the year 2012 for the period
of 12.05.2012 till 27.05.2012, which would be relevant
for just decision of the case. With the aforesaid reasons
mentioned in the application, he prayed for summoning
of the XI (eleven) defence witnesses.
5. The said application was opposed by the
respondent-State saying that the applicant-accused was
given full opportunity to produce defence witnesses from
29.03.2019; the witnesses of forensic examination need
not be called as the report of SFL was already submitted
on record; the witnesses in respect of CDR were also not
required as the complainant admitted in his evidence
talking with phone to the applicant-accused.
6. During pendency of the said application, one
defence witness, namely, Mohd. Kamil (DW1) was
examined on 03.09.2019 and on the same day, another
application under Section 243/233 Cr.P.C. was moved by
the applicant-accused in continuation of application
dated 15.05.2019, The application Paper No.179b moved
by the applicant was rejected by learned court below vide
judgment and order dated 04.09.2019. It is feeling
aggrieved by the said judgment and order of rejection of
the aforesaid application, the applicant is before this
Court.
7. It is mainly contended by learned counsel for
the applicant that in order to arrive out at a just and
proper adjudication of the matter and to do complete
justice between the parties, the defence witnesses as
named in the application deserve to be summoned.
8. It is vehemently argued on behalf of the
applicant that the applicant has got fundamental right of
a fair trial which includes fair and proper opportunity to
prove his innocence as denial of fair trial would amount
to contravention of fundamental rights conferred to the
applicant under Article 21 of the Constitution of India.
9. A counter affidavit has been filed on behalf of
the State in which it is stated that the same cause of
action, applicant has filed C482 No.1949 of 2019, which
is pending adjudication before this Court. Hence, the
present petition is not maintainable. It was also stated
that the applicant was nabbed taking bribe of
Rs.20,000/- from the complainant in the presence of
independent witnesses. It was further stated that before
passing the impugned order adequate opportunity of
hearing was given to the applicant.
10. Applicant has also filed his rejoinder affidavit
to the counter affidavit filed on behalf of the
State/respondent no.1 wherein the averments of the
counter affidavit have been denied. It was also stated that
the C482 No.1949 of 2019 was filed for another cause of
action viz. inspection of records especially currency notes
and glass bottles sent to the CFSL. Hence, the cause of
action in both these petitions is entirely different.
11. Learned Senior Advocate for the applicant
vehemently argued before me that the trial court has
erred in law in rejecting the application moved on behalf
of the applicant under Section 243/233 Cr.P.C. Since it
was a right vested upon the applicant under Section
243/233 Cr.P.C. to enter his defence and produce his
defence. It is well within the rights of the applicant to
adduce any document in support of his case and the
Court is bound to accept the same on record.
12. In my considered opinion, the impugned order
is not based upon the law. The witnesses who have been
sought to be produced cannot be said to be irrelevant or
not essential for the just decision of the case. The
allegation against the applicant is of accepting the bribe.
It is in the interest of justice to provide full fair and
reasonable opportunity of hearing to the accused. Under
Section 243 Cr.P.C., it is obligatory on the part of the
trial court to issue the process when the accused seeks
summoning of any witness or production of any
document in his defence. The only ground on which the
said application can be rejected is if the same was filed
for the purpose of vexation, delay or would defeat the
ends of justice.
13. Section 243 Cr.P.C. is quoted hereinbelow:-
"243. Evidence for defence.-(1) The accused shall then be
called upon to enter upon his defence and produce his
evidence; and if the accused puts in any written statement,
the Magistrate shall file it with the record.
(2) If the accused, after he had entered upon his defence,
applies to the Magistrate to issue any process for compelling
the attendance of any witness for the purpose of examination
or cross-examination, or the production of any document or
other thing, the Magistrate shall issue such process unless he
considers that such application should be refused on the
ground that it is made for the purpose of vexation or delay or
for defeating the ends of justice and such ground shall be
recorded by him in writing:
Provided that, when the accused has cross-
examined or had the opportunity of cross-examining any
witness before entering on his defence, the attendance
of such witness shall not be compelled under this
section, unless the Magistrate is satisfied that it is
necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an
application under Sub-Section (2), require that the reasonable
expenses incurred by the witness in attending for the
purposes of the trial be deposited in Court."
14. In so far as the argument on behalf of the
prosecution is concerned that the approach of the
applicant is just to frustrate the trial, I am of the opinion
that this argument does not hold any water for the
simple reason that while conducting a trial, free and
reasonable opportunity of hearing must be given to the
accused as the provisions of the Act, 1988 are very
stringent. After all, it is a matter which may affect the
entire life and entire service career of the
accused/applicant. If he is denied of his reasonable right
for producing the witnesses in his defence, the same
would cause great hardship to him which cannot be
compensated in any manner. In such a manner, it
cannot be said that the application moved on behalf of
the applicant was just to delay the trial. The delay, if any,
can be taken care of the by directing recording of defence
evidence within a stipulated period.
15. The Apex Court in the case of Mahant
Kaushalya Dass vs. State of Madhya Pradesh; 1966
Cri. L.J. 66 held that 'fair trial' includes fair and proper
opportunities should be allowed by law to prove
innocence of the accused. Adducing evidence in support
of defence is a valuable right and denial of the said right
itself would amount to denial of a fair trial as well as
contravention of rights conferred under Article 21 of the
Constitution of India.
16. In case of Arivazhagan vs. State; (2000) 3
SCC 328, the Apex Court has held that nevertheless,
after the appellant completes his evidence in accordance
with the permission now granted as per the impugned
orders, it is open to the appellant to convince the trial
court that some more persons need to be examined in the
interest of justice, if the appellant thinks that such a
course is necessary. The trial court will then decide
whether it is essential for a just decision of the case to
examine more witnesses on the defence side. If the Court
is so satisfied, the Special Judge can permit the appellant
to examine such additional witnesses the examination of
whom he considers essential for a just decision of the
case or he can exercise the powers envisaged in Section
311 CrPC in respect of such witnesses. At present it is
not possible to oversee the situation as to the trial court
could then reach such a satisfaction. Hence, it is left to
the trial court to do the needful at the appropriate stage.
17. In view of what has been stated above I am of
the firm opinion that the trial court has erred in law in
rejecting the application moved on behalf of the applicant
under Section 243/233 Cr.P.C.
18. As a result the present C482 application is
allowed. The order dated 04.09.2019 passed by the trial
court, being contrary to the law, is hereby set-aside.
Application No.179b filed by the applicant under Section
243/233 Cr.P.C. dated 15.05.2019 is hereby allowed. The
applicant/accused is given three months time to produce
the defence witnesses in support of his case enumerated
in para 7 of the application dated 15.05.2019 and to
conclude their evidence within that time positively.
19. Let a copy of this judgment and order be
transmitted to the court concerned for compliance.
20. Pending application, if any, stands disposed of.
(Pankaj Purohit, J.)
15.04.2025
AK
