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Rajasthan High Court · body

2006 DIGILAW 777 (RAJ)

Hazi Mohd. & Sons v. State of Rajasthan

2006-03-07

H.R.PANWAR

body2006
JUDGMENT : 1. - By both these revision petitions under Section 397 read with Section 401 of the Code of Criminal Procedure (for short 'the Code' hereinafter), the accused-petitioner has challenged the order dated 26.7.2005 passed by Additional District Judge, No. 3, Jodhpur (for short 'the revisional Court' hereinafter) in Criminal Revision Nos. 19 of 2005 and 20 of 2005 respectively whereby the revisional Court set aside the orders dated 3.3.2005 passed by Additional Chief Judicial Magistrate, (Economic Offences), Jodhpur (for short 'the Trial Court' hereinafter). Both these revisions arise between the same parties and involve common question of facts and law, therefore, with the consent of learned counsel for the parties, they are heard together and decided by this order. 2. Two separate complaints under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act' hereinafter) were filed by non-petitioner No. 2 M/s. Sabu Mineral Pvt. Ltd. against the petitioner. The Trial Court took the cognizance of the offence and issued process. Accused-petitioner appeared in compliance of the process issued by the Trial Court. The Trial Court read over the substance of the charge to the petitioner. The petitioner denied the charge and sought trial. At the stage of recording statement of complainant and its witnesses, a question was put to a witness Ashok Mehta that he has not filed any authorisation to file the complaint against the petitioner. At that stage, an application in both the cases under Section 311 of the Code was filed by complainant-non-petitioner No. 2 seeking to produce the authorisation letter and recall the witness Ashok Mehta, those applications came to be dismissed by the Trial Court vide order dated 3.3.2005. Against the order of Trial Court, the non-petitioner No. 2 filed revision petitions being Revision Nos. 19 and 20 of 2005 respectively. By the order impugned, both the revision petitions and the applications filed by the non-petitioner No. 2 under Section 311 were allowed and the non- petitioner No. 2 was permitted to file the authorisation letter as also to recall the witness to prove the authorization. Aggrieved by the order of the revisional Court, the accused-petitioner has filed these two separate revisions. 3. I have heard learned counsel for the parties. Carefully gone through the order passed by the Trial Court as also by the revisional Court. 4. Aggrieved by the order of the revisional Court, the accused-petitioner has filed these two separate revisions. 3. I have heard learned counsel for the parties. Carefully gone through the order passed by the Trial Court as also by the revisional Court. 4. The revisional Court allowed the revision petitions filed by the non-petitioner No. 2 on the ground that the dismissing complaint on a technical ground when the matter is at the stage of trial is not in the interest of - The non-petitioner No. 2 categorically came with a case that due oversight, the authorisation letter could not be filed by which witness Mehta was authorised to file the complaint on behalf of non-petitioner M/s. Sabu Mineral Pvt. Ltd. 5. Section 311 of the Code provides that 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. 6. Thus, the expression 'at any stage' means till the Trial Court retains the session of the case and the matter is finally not heard and decided, an application under Section 311 of the Code can be filed by either party. The second part of section makes it obligatory on the part of the Court to summon a witness in the case if his evidence appears to it to be essential to the just decision of the case and such power may be exercised at any stage. Thus, it is clear from the language of Section 311 of the Code that requirement of just decision of the case does not limit the action to something in the interest of accused only, the action may equally benefit the prosecution. 7. In Rajendra Prasad v. The Narcotic Cell through its Officer in Charge, Delhi, 1999 CrLR (SC) 434 , Hon'ble Supreme Court held that lacuna in the prosecution must be understood as the inherent weakness or a latest wedge in the matrix of the prosecution case. 7. In Rajendra Prasad v. The Narcotic Cell through its Officer in Charge, Delhi, 1999 CrLR (SC) 434 , Hon'ble Supreme Court held that lacuna in the prosecution must be understood as the inherent weakness or a latest wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be fore-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magananimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. 8. In Mohan Lal Shamji Soni v. Union of India & Ors., AIR 1991 (Suppl. 1) SC 271, while interpreting Section 311 Criminal Procedure Code. Hon'ble Supreme Court held that the very usage of the word such as 'any Court', at any stage' or 'of any enquiry, trial or other proceedings', 'any person and any such person', clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way.However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. 9. Keeping in view, the decision of Hon'ble Supreme Court, in my view, the revisional Court was justified in allowing the revision petitions filed by the non-petitioner No. 2. 10. Consequently, the revision petitions fail and are dismissed. However, the question is left open for the petitioner to raise at the time of final hearing of the complaint case itself before the Trial Court. Stay applications also stand dismissed.Revision petitions dismissed. *******