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2013 DIGILAW 278 (UTT)

Surendra Singh v. State of Uttarakhand

2013-05-22

ALOK SINGH

body2013
Judgment Alok Singh, J. 1. Petitioners have invoked inherent jurisdiction of this Court under Section 482 Cr.P.C., assailing the order dated 07.09.2011 passed by Judicial Magistrate, Kashipur, District Udham Singh Nagar and judgment and order dated 28.03.2012 passed by Sessions Judge, Udham Singh Nagar in criminal revision no. 204 of 2011 whereby learned Magistrate was pleased to allow the application moved under Section 311 Cr.P.C summoning Harjinder Singh and Santok Singh as additional witnesses and revision arising therefrom was dismissed by the Revisional Court on the ground that order of summoning the additional witnesses under Section 311 Cr.P.C. is an interlocutory order, therefore, revision is not maintainable. 2. Brief facts of the present case, inter alia, are that an FIR being case crime no. 2014 of 2006 on 13.06.2006 under Section 498-A, 323 IPC and 3/4 of the Dowry Prohibition Act, was lodged by respondent no. 2 against the petitioners herein stating therein that his daughter Kuldeep Kaur got married with Surendra Singh as per the Sikh Rituals and Customs on 13.02.2006; at the time of marriage silver and gold jewellery, washing machine, colour TV, fridge and other articles were given to the petitioners’ party; one day before marriage one motorcycle was demanded by the husband side and the same was also given to the husband at the time of marriage, even then, husband and in-laws of Kuldeep Kaur were not happy with the articles given at the time of marriage; petitioners started beating and harassing Kuldeep Kaur, just after three days of her marriage on the pretext of bringing less dowry; complainant came to the matrimonial house of Kuldeep Kaur after five days of her marriage; Kuldeep Kaur told him that she was subjected to harassment and cruelty and they were demanding a Alto Car; it was further disclosed by Kuldeep Kaur that petitioners were extending threat, if Alto Car was not given, they would oust her and they would kill her; despite repeated requests by the complainant and his daughter, petitioners did not stop and kept on demanding Alto Car; on 18.04.2006 complainant along with few other persons once again went to the matrimonial house of Kuldeep Kaur and tried to pacify the petitioners, however, petitioners refused to hear them and told the appellant that until and unless, Alto Car was given, they would not allow Kuldeep Kaur to enter into their house. 3. 3. Having investigated the matter, police filed charge-sheet against the petitioners for the offence punishable under Section 498-A, 323 IPC and ¾ of the Dowry Prohibition Act. During trial PW1 Seva Singh, complainant and PW2 Kuldeep Kaur were examined and cross-examined, thereafter an application under Section 311 Cr.P.C. was moved before the Magistrate to summon Harjinder Singh and Santok Singh as additional witnesses stating that Harjinder Singh and Santok Singh also went to the matrimonial house of Kuldeep Kaur. Learned Magistrate, vide impugned order dated 07.09.2011, was pleased to allow the application moved under Section 311 Cr.P.C summoning Harjinder Singh and Santok Singh as additional witnesses. Revision, arising therefrom, was also dismissed by the Revisional Court vide judgment and order dated 28.03.2012 by observing that order of summoning the additional witnesses under Section 311 Cr.P.C. is an interlocutory order. Feeling aggrieved, petitioners have filed this petition. 4. I have heard Mr. Manav Sharma, Advocate for the petitioners, Mr. H.O. Bhakuni, Brief Holder for the State and Mr. I.P. Paliwal, Advocate for respondent no. 2 and have carefully perused the record. 5. A perusal of the FIR would show that names of Harjinder Singh and Santok Singh were not figured in the FIR. Even in the statements recorded under Section 161 Cr.P.C. names of Harjinder Singh and Santok Singh were not mentioned. 6. Hon’ble Apex Court in the case of Hanuman Ram Vs. State of Rajasthan reported in 2008 (15) SCC 652 has held as under: “The section is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequences, 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 any one as a witness, or (b) to examine any person present in Court, or (c) to recall and reexamine 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 by duty of examining a material witness who would not be brought before it. This is a supplementary provision enabling, and in certain circumstances imposing on the Court by duty of examining a material witness who would not be 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.” 7. Neither in the application, it is stated that what has actually happened in the presence of Harjinder Singh and Santok Singh sought to be summoned as additional witnesses nor their names were disclosed in the FIR, therefore, in my considered opinion, nothing is brought on the record to suggest that their statements are essential to the just decision of the case, consequently, learned Magistrate committed jurisdictional error while allowing the application moved under Section 311 Cr.P.C. Learned Trial Court, before allowing an application under Section 311 of the Code, should record reasons as to why additional witnesses are essential for the just decision of the case. 8. It is true that order passed by the trial court summoning the additional witnesses under Section 311 Cr.P.C. is interlocutory order and revision is not maintainable against it under Section 397 Cr.P.C., therefore, no fault can be attributed to the judgment and order rendered by revisional court. However, since this Court is exercising powers under Section 482 Cr.P.C. and order passed by Magistrate, is also impugned herein and same is found to be erroneous, therefore, present petition is allowed. Impugned order passed by learned Magistrate is set aside. Application filed by the respondent under Section 311 Cr.P.C. stands dismissed. Trial Court may proceed with trial in accordance with law.