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2012 DIGILAW 499 (PNJ)

Jagjit Singh v. State of Punjab

2012-03-26

MEHINDER SINGH SULLAR

body2012
JUDGMENT Mehinder Singh Sullar, J. The compendium of the facts, which requires to be noticed, relevant for the limited purpose of deciding the core controversy, involved in the instant petition and oozing out, from the record, is that, in the wake of statement of complainant Jagjit Singh petitioner (for brevity “the complainant”), a criminal case was registered against accused Sukhvinder Chand son of Om Parkash (respondent No.2), vide FIR bearing No.111 dated 11.12.2004, on accusation of having committed the offence punishable under Section 420 IPC, by the police of Police Station Kotwali Nabha, District Patiala, inter-alia with the following allegations:- “That on 17.09.2004, complainant Jagjit Singh gave an application to D.I.G. Patiala stating that he had some dealings with M/s Sandhu Traders. The owners of the Firm are Beant Kaur W/o Bahadar Singh R/o Village Nohra and Sukhvinder Chand S/o Om Parkash R/o Babarpur. The complainant had cleared all the due to the said Firm and nothing was pending to him. In the beginning when the dealings started, a blank pronote signed by Jagjit Singh was given and when the dealings had come to end the accused Sukhvinder Chand returned another pronote having himself forged signatures of Jagjit Singh to him. When complainant Jagjit Singh told him that this is not the pronote signed by him then Sukhvinder Chand told him that he has no other pronote signed by complainant with him. He told that if the complainant started selling crop to some other Commission agent, then this pronote will be filled in of Rs.8/10 Lacs and case would be filed.” 2. Having completed all the codal formalities, the respondent-accused was accordingly charge-sheeted and the prosecution produced its evidence. Consequently, the evidence of the prosecution was closed by the order of the Court. 3. During the pendency of the case, the complainant moved an application (Annexure P4) to produce the additional documentary evidence mentioned therein. The respondent-accused refuted the prayer of petitioner and filed the reply (Annexure P5). 4. The trial Court dismissed the application (Annexure P4) under Section 311 Cr.PC filed by the complainant, by virtue of impugned order dated 8.6.2011 (Annexure P1). 5. The petitioner-complainant did not feel satisfied and preferred the present petition, to quash the impugned order (Annexure P1), invoking the provisions of Section 482 Cr.PC. 6. 4. The trial Court dismissed the application (Annexure P4) under Section 311 Cr.PC filed by the complainant, by virtue of impugned order dated 8.6.2011 (Annexure P1). 5. The petitioner-complainant did not feel satisfied and preferred the present petition, to quash the impugned order (Annexure P1), invoking the provisions of Section 482 Cr.PC. 6. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be partly accepted in this context. 7. As is evident from the record, that the prosecution/complainant sought to produce the documents and to prove the affidavit dated 29.9.2005, duly signed by the accused in the presence of witnesses. The main grounds, which appear to have been weighed with the trial Court to dismiss the application (Annexure P4) of the prosecution, were that the factum of the indicated affidavit does not find mention in the statement of complainant and the prosecution has availed many opportunities to lead evidence when the same was closed by order of the Court. 8. True it may be, but here to me, the Magistrate has slipped into a deep legal error in this respect. The indicated grounds, ipso facto, are not the cogent grounds to dismiss the application moved on behalf of the prosecution. The production of the documents and the affidavit dated 29.9.2005 signed by the accused, now sought to be produced, is essential to decide the real controversy between the parties. Section 311 Cr.PC postulates 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.” 9. Meaning thereby, it is the statutory duty of the Court to make every endeavour that the best available evidence should be brought before the Court for just decision of the case. Moreover, the production of the aforesaid affidavit is essential and is the legal requirement of fair trial. This matter is no more res integra and is now well settled. 10. Moreover, the production of the aforesaid affidavit is essential and is the legal requirement of fair trial. This matter is no more res integra and is now well settled. 10. An identical came to be decided by the Hon'ble Apex Court in case Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd. 2008(3) R.C.R. (Criminal) 897, wherein, having interpreted the provisions of Section 311 Cr.PC, it was ruled as under (paras 7 to 9) :- “7. The section is manifestly in two parts. Whereas the word used in the first part is “may", the second part uses “shall”. In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. 8. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. 8. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. 9. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short “the Evidence Act”")are based on this rule. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be “filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.” 11. The ratio of law laid down by the Hon'ble Supreme Court “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. Thus, taking the accusation/nature of the offence into focus, the trial Magistrate ought to have granted one more opportunity to the prosecution, to conclude its evidence, particularly, when the respondent-accused can well be compensated with adequate costs in this behalf. Therefore, to me, the trial Court has committed the illegality and material procedural irregularity and the impugned order (Annexure P1) cannot legally be maintained in the obtaining circumstances of the case. 12. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, the instant petition is hereby accepted. Consequently, the impugned order (Annexure P1) is set aside. The trial Court is directed to provide one more effective opportunity to the prosecution to conclude its evidence. The prosecution is also directed to take every endeavour and effective steps to conclude its evidence. However, this would be subject to payment of ` 5500/- as costs, to be paid by the petitioner-complainant to the respondent-accused. Needless to mention that the trial Court would ensure the payment of costs personally to the respondent-accused.