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2003 DIGILAW 1186 (RAJ)

Neelam Sharma v. Sri Gangadas Irrigation System

2003-08-26

HARBANS LAL

body2003
Judgment Harbans Lal, J.-This petition under Section 482, Cr.P.C. seeks quashing of order dated 29.2002 passed by learned Special Judge (Fake Currency Notes) Cases, Jaipur in Criminal Revision No. 176/2002 whereby the order dated 19.2002 passed by the learned Judicial Magistrate No. 16, Jaipur City, Jaipur in Criminal Case No. 917/2001 closing the evidence in a case under Section 138 of the Negotiable Instruments Act, 1881 has been upheld. 2. The relevant facts are that in the case instituted on the complaint of non-petitioner-complainant for the offence under Section 138 of the Negotiable Instruments Act, 1881 the defence evidence was closed on 19.2002 as the remaining defence witnesses did not appear despite service of summons on them. The written application moved by and on behalf of the accused for summoning the remaining witnesses as per the list was also rejected on the same day. 3. Learned Counsel for the petitioner has contended that the order of the Court below is arbitrary and non-speaking. No reasons have been given in the order for refusing to summon defence witnesses. The evidence has been closed without affording the accused sufficient opportunity to lead his evidence in defence. The order does not indicate as to how many opportunities have been given. No fault on his part has been pointed out in the order for refusing him further opportunity to lead defence evidence. He has also submitted that the Court has not recorded that the witness is not material for just decision of the case. 4. Learned Counsel for the complainant non-petitioner has supported the order of the Court below. He has submitted that this petition in fact tantamounts to second revision which is barred under Section 397(3), Cr.P.C. He has also pointed out that it being a summons case, it was discretionary with the Magistrate to provide assistance for compelling the attendance of the witness. The Court below has rightly refused the assistance of the Court for compelling the attendance of the witness. 5. I haveconsidered the submissions made at the Bar and have also perused the impugned order as well as the relevant provisions. 6. The Court below has rightly refused the assistance of the Court for compelling the attendance of the witness. 5. I haveconsidered the submissions made at the Bar and have also perused the impugned order as well as the relevant provisions. 6. No doubt, the provisions of Section 254(2), Cr.P.C. which provides for issuance of summons to any witness directing him to attend or to produce any document or other thing on the application of the prosecution or the accused is different from the provision of Section 243(2), Cr.P.C. which deals with production or defence evidence in the cases of warrant trial. While in the former section word ‘may’ has been used while in Section 243(2), Cr.P.C. the word ‘shall’ has been used. But there cannot be any gainsaid that the discretion given to the Court should be exercised judicially and not whimsically or arbitrarily. 7. In the instant case, it appears from the perusal of the impugned order that the summons was first issued by the Court which was also duly served on the witness and the witness did not turn up. It was, therefore, just, reasonable and appropriate for the Trial Court to have provided assistance for compelling the attendance of the witness. Justice should not only be done, it should appear to have been done is a cardinal principle or jurisprudence. The order impugned does not indicate as to why further assistance for compelling the attendance of witness was refused. No default on the part of the petitioner has been pointed out in the order. It is also not mentioned therein that the application filed by him was for vexation or delay or for defeating the ends of justice. It is also not the case that the evidence of the witness is not material for just decision of the case. Thus, it cannot be said that the Court has exercised its discretion judicially. It is, therefore, essential for securing ends ofjustice to interfere in the impugned order in exercise of inherent powers of this Court vested under Section 482, Cr.P.C. The order impugned deserves to be quashed and set aside. Directions need be issued to the Court below to provide petitioner reasonable and adequate opportunity to adduce his witness in defence and also to provide him assistance for compelling their attendance in Court. Directions need be issued to the Court below to provide petitioner reasonable and adequate opportunity to adduce his witness in defence and also to provide him assistance for compelling their attendance in Court. Learned Revisional Court has also not assessed itself to the above aspect of the matter and appears to have mechanically confirmed the order of the Trial Court. 8. Consequently, this petition is allowed and the order dated 29.2002 passed by the learned Special Judge (Fake Currency Notes) Cases, Jaipur as also the order dated 19.8.2002 passed by the learned Judicial Magistrate No. 16, Jaipur City, Jaipur are hereby quashed and set aside and it is directed that petitioner be provided reasonable opportunity to produce all his remaining defence witnesses and to provide him also assistance of the Court as per law for compelling the attendance of the witnesses, if he applies for the same.