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2014 DIGILAW 710 (ALL)

KAMLESH KUMAR v. STATE OF U. P.

2014-02-27

VIRENDRA VIKRAM SINGH

body2014
JUDGMENT Hon’ble Virendra Vikram Singh, J.—The applicant has approached this Court by way of moving application under Section 482 Cr.P.C. with the relief to quash the impugned order dated 6.2.2014 passed by the Additional Chief Judicial Magistrate VI, Varanasi, in Criminal Case No. 1454 of 2012 (State v. Kamlesh Kumar) arising out from Case Crime No. 334 of 2007, under Sections 419, 420, 467, 468 I.P.C. Police Station Shivpur, District Varanasi. Heard learned counsel for the applicant and learned AGA for the State. By the impugned order, the trial Court while exercising powers under Section 311 Cr.P. C. has summoned the documents relating to the selection of the applicant, as also Anandeshwar Pandey, General Secretary of the U.P. Olympic Association. The accusation of the applicant in brief is that he obtained a job against fake and forged certificates about his participation in the high level games. 2. The argument of the learned counsel for the applicant is that the witnesses and the documents which have been summoned by the Court in exercise of powers under Section 311 Cr.P.C. are infact the evidence of the prosecution and the summoning of these documents and witnesses is infact a process to fill up the lacuna of the prosecution which cannot be the scope of Section 311 Cr.P.C. 3. The contention of the applicant definitely carries weight. In the case of Natasa Singh v. CBI, Criminal Appeal No. 709 of 2013 decided on 8.5.2013, it has been held that “an application under Section 311 Code of Criminal Procedure must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence or to disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party.” 4. It is true that the trial Courts are not supposed to fill up the lacuna of the prosecution. At this juncture it is proper to quote the provision of Section 311 Cr.P.C., which reads as follows : 311. It is true that the trial Courts are not supposed to fill up the lacuna of the prosecution. At this juncture it is proper to quote the provision of Section 311 Cr.P.C., which reads as follows : 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. Bare perusal of Section 311 Cr.P.C. shows that it is divided in two paras. First part enables the Court to summon or recall any witness whereas the other part makes it obligatory on the Court to summon a witness which is necessary for the just decision of the case. 5. It is true that the Court shall not fill up the lacuna of the prosecution or the defence but it cannot be denied that whenever any witness shall be summoned by the Court under the provision of Section 311 Cr.P.C., it has to be against the prosecution or the defence. The legal analogy that the Courts are not supposed to fill up the lacuna or the accused by way of exercising powers under Section 311 Cr.P.C., in no way, can be interpreted that the Courts shall not summon any witness or the evidence which is against the prosecution or the accused. If this interpretation is given to the legal acceptance, the Court apprehends that the wide powers provided to the trial Court under Section 311 Cr.P.C. shall loose all its importance for the simple reason that whenever any witness is summoned by the Court under Section 311 Cr.P.C., it will either favour the prosecution or the accused. This fact of Section 311 Cr.P.C. has been considered in the case of Iddar and others v. Aabida and another, AIR 2007 SC 3029 and has been relied upon in the judgment of Rajaram Prasad Yadav v. State of Bihar and another, AIR 2013 SCC 3081. In para 11 of the judgment, the Apex Court has held as follows : 11. In para 11 of the judgment, the Apex Court has held as follows : 11. “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 from 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 for 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 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 inquiry or trial or other proceeding under this Code.” 6. The object underlying under 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 profit 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 for the prosecution and not that of the accused. 7. If the law propounded by the Apex Court be applied to the present case, the result comes that while passing the impugned order, the trial Court has categorically observed that recording of such evidence is necessary to the just decision of the case. Under the circumstances of the case, as it appears from the record of the case, the observation of the Court cannot be said to be unfounded. Under the circumstances of the case, as it appears from the record of the case, the observation of the Court cannot be said to be unfounded. The order in question cannot be set aside simply on the ground that the evidence as it has been proposed to be examined by the Court in exercise of powers under Section 311 Cr.P.C. does not suit the accused or may be favourable to the prosecution. Having considered the facts and circumstances, as also the legal aspects of the case, the Court in no case finds any abuse of process in the impugned order. The application lacks merit and is liable to be rejected. The application is hereby rejected. —————