Vijay Kumar Vs. State
of U.P. and another
J U D G M E N T
J.M. PANCHAL, J.
1.
Leave
granted.
2.
This
appeal, by grant of special leave, is directed against judgment dated May 10,
2010, rendered by learned Single Judge of High Court of Judicature at Allahabad
in Criminal Revision No. 1895 of 2010, by which the order dated April 23, 2010,
passed by learned Special Judge, Bareilly below Application No. 103 Kha in
Special Case No. 2 of 2003 refusing to summon Smt. Ruchi Saxena, staying in U.S.A.,
as a court witness, is set aside and the learned Special Judge, Bareilly is directed
to summon and examine Smt. Ruchi Saxena as court witness under Section 311 of the
Code of Criminal Procedure, 1973.
3.
From
the record of the case it is evident that Smt. Ruchi Saxena, resident of village
Aonla, District Bareilly, U.P., is owner of an agricultural piece of land. She
is settled in U.S.A. Her property is being looked after by the appellant Mr.
Vijay Kumar, who is her father. To avoid encroachment on the land Smt. Ruchi Saxena
started constructing boundary wall on the agricultural land belonging to her. However,
construction of wall was objected to, by the Nagar Palika, Aonla on the ground that
Nagar Palika is the owner of the said land. Therefore, Smt. Ruchi Saxena filed a
suit No. 443 of 1999 in the Court of learned Civil Judge praying for permanent
prohibitory injunction to restrain the Nagar Palika, Aonla and its servants,
agents, etc. from putting up any obstruction in construction of wall to be
carried out on the property in question. The learned Civil Judge, before whom
the suit was pending, by order dated September 24, 1999, granted an interim
order directing the Nagar Palika not to interfere with the possession of Smt.
Ruchi Saxena of her agricultural land and not to obstruct construction of boundary
wall. It may be stated that the Nagar Palika had filed an application on September
23, 1999 under Order VII Rule 11, Civil Procedure Code, to reject the plaint, as
according to it, the plaint was not disclosing any cause of action. However, the
said application was rejected by the learned Judge on September 23, 1999.
4.
Feeling
aggrieved by the order of injunction, Nagar Palika filed miscellaneous appeal under
Order 43 Rule 1 CPC as well as a civil revision application under Section 115 of
the Civil Procedure Code against order rejecting application filed under Order VII
Rule 11 of the Civil Procedure Code before the High Court. During the pendency
of the appeal and the revision, the respondent No. 2, i.e. Tajammul Hussain became
Chairman of Nagar Palika in the year 2001. At that time, one Mr. Shamim Ahmad was
Executive Officer of the Nagar Palika. After filing of suit Smt. Ruchi Saxena
has gone to U.S.A. and presently she is residing there. However, the case instituted
by her is being supervised and looked after by the appellant Mr. Vijay Kumar,
who is her father.
5.
The
case of the prosecution is that the respondent No. 2 herein and the Executive
Officer Mr. Shamim Ahmed demanded a sum of Rs.2 lacs as bribe from the appellant
to settle the matter. Therefore, on December 5, 2001, the appellant lodged a
complaint before S.P. (Vigilance), Bareilly in respect of the same, pursuant to
which a trap was arranged. On December 7, 2001 the respondent No. 2 and Shamim Ahmed
were arrested while receiving an amount of Rs.50,000/- as part payment of total
bribe amount of Rs.2 lacs. On April 24, 2002, the miscellaneous appeal, filed by
the Nagar Palika against the order granting interim injunction, was dismissed
by the appellate court, and thereafter, the appellant has constructed boundary wall
over the property in question.6. After success of the trap, further investigation
was carried out and on January 4, 2003 charge-sheet was submitted against the two
accused persons, namely, the respondent No. 2 and Shamim Ahmed, who was then
Executive Officer of the Nagar Palika, for alleged commission of offences
punishable under
6.
6
Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,
1988. The prosecution also submitted a list of witnesses. The list did not
indicate the name of Smt. Ruchi Saxena as one of the witnesses to be examined
in the case because she was neither examined during the investigation of the complaint
lodged by the appellant nor has any concern with the criminal case.
7.
On
December 16, 2006 an application dated February 26, 2004 was moved on behalf of
Smt. Ruchi Saxena in the suit filed by her before the trial court seeking
permission to withdraw the suit with liberty to file fresh suit in case there was
fresh cause of action. The said application was allowed and the record shows that
the learned counsel for Nagar Palika was also present at the time when the said
order was passed.
8.
After
framing of necessary charges against the two accused the trial of the case was conducted
before the learned Special Judge, Bareilly in Special Case No. 2 of 2003. During
the trial the prosecution examined witnesses. They were cross-examined on behalf
of the accused. On March 18, 2010 the prosecution submitted certified copies of
the orders passed by the competent court and the High Court in respect of civil
litigation. The learned Special Judge, by an order dated March 22, 2010, allowed
the papers to be admitted in evidence, by awarding cost of Rs.500/- to each of
the accused and closed the evidence on behalf of the prosecution. Thereafter, the
case was fixed for April 2, 2010 for statements of the accused to be recorded under
Section 313 of the Code of Criminal Procedure and for defence evidence, if any.
9.
On
April 2, 2010, three separate applications were filed by the accused. One
application No. 103 Kha was filed by accused Tajammul Hussain requesting the
court to summon Smt. Ruchi Saxena as a court witness. Second application being
No. 104 Kha was filed to recall the present appellant Vijay Kumar, PW-8 Anoop
Kumar, PW-10 Lekh Pal Lala Ram and PW-11 Investigating Officer. Third
application being No. 105 Kha was moved by the accused Shamim Ahmed to recall the
appellant. On April 15, 2010, objections were filed on behalf of the
prosecution to the three applications submitted by the accused.
So far as application
praying to summon Smt. Ruchi Saxena and examine her as a court witness was concerned,
it was stated on behalf of the prosecution that the application was filed to delay
the trial because the accused were fully aware of the fact that Smt. Ruchi Saxena
was residing in America as a citizen of USA and it was difficult for her to
appear as a witness. It was also pointed out by the prosecution that Smt. Ruchi
Saxena had nothing to do with this case and neither she was examined under
Section 161 of the Code of Criminal Procedure nor her name had been listed as one
of the prosecution witnesses. What was maintained by the prosecution was that the
application was filed with mala fide intention and accused had failed to indicate
in the application as to what was the intention of their questioning Smt. Ruchi
Saxena especially when no questions and/or suggestions were put to any of the witnesses
examined by the prosecution with reference to her.
10.
The
learned Special Judge, by order dated April 23, 2010, dismissed all the three applications.
Therefore, feeling aggrieved, the respondent No. 2 filed a revision petition
being Criminal Revision No. 1895 of 2010 before the High Court challenging the order
by which his request to summon and examine Smt. Ruchi Saxena as a court witness
was rejected.
11.
The
High Court has allowed the revision petition by judgment dated May 10, 2010 giving
rise to the instant appeal.
12.
This
Court has heard the learned counsel for the parties and considered the
documents forming part of the appeal.
13.
Section
311 of the Code of Criminal Procedure 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."This Section consists of two parts,
viz., (1) giving discretion to the court to examine the witness at any stage; and
(2) the mandatory portion which compells a court to examine a witness if his
evidence appears to be essential to the just decision of the case.
The Section enables and
in certain circumstances, imposes on the Court the duty of summoning witnesses
who would have been otherwise brought before the Court. This Section confers a wide
discretion on the Court to act as the exigencies of justice require. The power of
the Court under Section 165 of the Evidence Act is complementary to its power under
this Section. These two sections between them confer jurisdiction on the Court to
act in aid of justice. There is no manner of doubt that the power under Section
311 of Code of Criminal Procedure is a vast one.
This power can be
exercised at any stage of the trial. Such a power should be exercised provided
the evidence which may be tendered by a witness is germane to the issue
involved, or if proper evidence is not adduced or relevant material is not
brought on record due to any inadvertence. It hardly needs to be emphasized that
power under Section 311 should be exercised for the just decision of the case. The
wide discretion conferred on the court to summon a witness must be exercised judicially,
as wider the power, the greater is the necessity for application of the
judicial mind. Whether to exercise the power or not would largely depend upon
the facts and circumstances of each case. As is provided in the Section, power to
summon any person as a witness can be exercised if the court forms an opinion that
the examination of such a witness is essential for just decision of the case.
14.
The
record nowhere shows that any complaint was filed by Smt. Ruchi Saxena against any
of the accused making grievance that they had demanded any bribe amount from her.
The case of the prosecution is simple that in order to settle the matter
relating to construction of boundaries on the disputed property, which is being
supervised by the appellant who is father of Smt. Ruchi Saxena, the respondent No.
2 and another accused had demanded a sum of Rs.2 lacs as bribe amount from the
appellant as a result of which the appellant had filed complaint pursuant to which
a trap was laid and accused were arrested while receiving an amount of
Rs.50,000/- as part payment of the bribe amount of Rs.2 lacs.
As is evident from
the facts of the case after success of the trap, FIR in the case was lodged by Mr.
V.K. Bhardwaj, Inspector U.P. Vigilance Establishment. After framing of charge
and commencement of trial several witnesses were examined by the prosecution, who
had been cross-examined by the accused. Smt. Ruchi Saxena had nothing to do with
the bribe case either as a complainant or as a witness to the trap arranged by
the police. Her name did not figure as one of the witnesses to be examined by the
prosecution when charge-sheet was submitted in the court of learned Special Judge.
The High Court without
specifying as to how Smt. Ruchi Saxena is a material witness or how her
evidence is essential for just decision of the case, has directed the learned
Special Judge to summon Smt. Ruchi Saxena as a court witness under Section 311 of
the Code of Criminal Procedure and to examine her. 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 the
Code 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. Before directing the learned Special Judge to examine
Smt. Ruchi Saxena as a court witness, the High Court did not examine the
reasons assigned by the learned Special Judge as to why it was not necessary to
examine her as a court witness and has given the impugned direction without assigning
any reason.
The High Court failed
to consider the case of the prosecution that the application was submitted by the
respondent No. 2 only to delay the trial and no case was made out by the respondent
No. 2 as to why direction should be given to examine Smt. Ruchi Saxena as a court
witness. In a bribe case what is required to be proved by the prosecution is that
there was a demand of bribe by the accused from the complainant and that
pursuant to the said demand, bribe amount was accepted by the accused. To prove
this case it was not necessary for the court to examine Smt. Ruchi Saxena as a
court witness.
15.
Neither
the respondent No. 2 in his application nor the court in the impugned judgment has
specified the reason as to why and how examination of Smt. Ruchi Saxena as a
court witness is necessary.
16.
At
this stage, it would be advantageous to refer to decision of this Court in Sawal
Das vs. State of Bihar AIR 1974 SC 778. In the said case the appellant, his father
and his mother were charged for murder of appellant's wife. Immediately after the
wife was pushed inside the room and her cries of "Bachao Bachao" came
from inside the room, her children were heard crying and uttering words that
their mother was either being killed or had been killed. But the children were not
produced as witnesses in the trial court. There was some evidence in the case that
the appellant's children had refrained from revealing any facts against the
appellant or his father or his step-mother when they were questioned by the relations
or by the police. The argument before this Court was that they should have been
summoned as court witnesses for examination under Section 540 of the Code of
Criminal Procedure, 1898, which is para material same as Section 311 of Code of
Criminal Procedure, 1973. This Court has held that the court could have rightly
decided in such circumstances not to examine the children under Section 540 of
the Code of Criminal Procedure.
If this is the
approach to be made while deciding application under Section 311 of the Code of
Criminal Procedure, this Court fails to understand as to how the evidence of
Smt. Ruchi Saxena was relevant in the instant case and why direction should be
given to examine her as a court witness, as she was neither present at the time
when the bribe was demanded or even at the time when the trap was arranged and laid.
Without examining the relevance of evidence, which may be tendered by Smt. Ruchi
Saxena or the necessity of examining her as a court witness or examining the
question of prejudice if at all which is likely to be caused to the defence, if
she is not examined, the High Court has directed the learned Special Judge to examine
Smt. Ruchi Saxena as a court witness. There is no manner of doubt that the power
under Section 311 of the Code of Criminal Procedure, 1973 is exercised arbitrarily
and, therefore, the impugned judgment is liable to be set aside.
17.
For
the foregoing reasons the appeal succeeds. The impugned order dated May 10, 2010,
rendered by the learned Single Judge of the High Court of Judicature at Allahabad
in Criminal Revision No. 1895 of 2010 directing the learned Special Judge to examine
Smt. Ruchi Saxena as a court witness is hereby set aside.
18.
The
appeal accordingly stands disposed of.
.....................................J.
[J.M. Panchal]
.....................................J.
[H.L. Gokhale]
New
Delhi;
August
03, 2011.
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