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2015 DIGILAW 1189 (JHR)

Biri Bhagat v. State of Jharkhand

2015-09-29

RAVI NATH VERMA

body2015
ORDER : 1. The petitioner has questioned the legality of the order dated 27.4.2015 passed by learned Chief Judicial Magistrate, Lohardaga in G.R. No. 446 of 2014 whereby and whereunder, the court below has directed Devan Parha Samiti to produce the documents which were filed by the complainant-informant on different dates before the said Committee and also the documents relating to the decision taken by that committee. 2. At the instance of the complainant-Sumitra Toppo, one complaint was filed in the court of learned Chief Judicial Magistrate, Gumla which was sent to the officer-in-charge of Lohardaga (Mahila) police station for institution and investigation. Whereafter, Lohardaga (Mahila) P.S. Case No. 36 of 2014 was instituted under Section 498-A, 495, 307, 341 and 323 of the Indian Penal Code with the allegation that the marriage of the informant-complainant was solemnized with this petitioner on 19.5.2013 and after marriage, she went to her matrimonial house where she came to know that the petitioner had earlier solemnized his marriage with one Asha Jyoti Toppo, who was a nurse but as their relationship was not cordial due to regular torture of Asha Jyoti Toppo, the petitioner solemnized his second marriage with the present informant who is a teacher in a Government school. It is also alleged that the petitioner on several occasions assaulted her and also coerced her to part her salary and also developed an illicit relationship with one Sunita Oraon. On several dates as given in the complaint petition, she was assaulted by the petitioner and even he tried to kill her but anyhow she could save herself and informed the Raja Parha Samiti on 13.7.2014 where it was resolved that the petitioner will not go to the house of Sunita Oraon and will reside with the informant but as there was no change in the attitude of the petitioner, this case was lodged. 3. The police after due investigation submitted the charge-sheet against the petitioner under Section 323, 341, 494 and 498-A of the Indian Penal Code. Accordingly, charges were framed and the prosecution examined all the six witnesses. Thereafter, on 31.3.2015, a petition was filed by the prosecution enclosing some photocopies of documents and pleaded that due to latches in the investigation, these documents, which were relevant to the case, could not be collected by the Investigating Officers. Accordingly, charges were framed and the prosecution examined all the six witnesses. Thereafter, on 31.3.2015, a petition was filed by the prosecution enclosing some photocopies of documents and pleaded that due to latches in the investigation, these documents, which were relevant to the case, could not be collected by the Investigating Officers. Hence, the prayer was to issue Dasti Summon to the Devan Parha Samiti, Lohardaga with direction to produce those original documents in Court. 4. The petitioner filed a rejoinder to the said petition stating therein that the prosecution has not disclosed the source from where she obtained the photocopies of the aforesaid documents, which appears to be forged and fabricated. The informant obtained those documents by practicing fraud upon the said committee. It is also stated in the petition that during investigation, no such document was produced before the Investigating Officer. Hence, those documents can not be taken into evidence against the petitioner at the fag end of the trial. 5. The court of learned Chief Judicial Magistrate after hearing both the parties, directed the said committee to produce the documents as prayed by the informant by the order impugned dated 27.4.2015. Hence, this revision. 6. Learned counsel assailing the order impugned as bad and perverse in law, seriously contended that the court below at the fag end of the trial when all the prosecution witnesses have been examined, allowed the prosecution to fill up the lacunae and that too, when the prosecution has not disclosed the source from which she obtained the photocopies of the documents. It was also submitted that the powers under Section 311 can not be invoked for the production of documents. Learned counsel has relied on the case of Zhaira Habibulla H. Sheikh and Another vs. State of Gujarat, (2004) 4 SCC 158 wherein it has been held that the power under Section 311 of the Code of Criminal Procedure is exercised and the evidence is examined neither to help the prosecution nor to the defence. The object of the provision is to enable the Court to arrive at the truth, irrespective of the fact, that the prosecution or defence has failed to adduce some evidence, which is necessary for a just and proper adjudication of the case and to uphold the truth. 7. The object of the provision is to enable the Court to arrive at the truth, irrespective of the fact, that the prosecution or defence has failed to adduce some evidence, which is necessary for a just and proper adjudication of the case and to uphold the truth. 7. Contrary to the aforesaid submissions, the learned counsel appearing for the opposite party Sumitra Toppo, who has suo motu appeared in this case, submitted that there is no error in the order impugned and the power which has been exercised by the court below can be exercised at any stage of the proceeding provided that the documents are necessary for proper adjudication of the dispute between the parties. 8. From the facts of the present case, it would appear that in exercise of the powers under Section 311 of the Code, the trial court has ordered for production of certain documents from the private body Devan Parha Samiti. The important question that may arise in this connection would be, can the production of any document be ordered in exercise of the powers conferred under Section 311 of the Code. Before proceeding to consider this question, I would like to reproduce Section 311 of the Code 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 persons 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. A perusal of this section will clearly show that under its provisions, the law authorises the Court to examine any witness or any person in attendance or to recall and re-examine any person already examined. There is no mention of production of any document in this section. As a matter of fact this section does not at all refer to any document or documentary evidence. Under this circumstance can it be said that a Court can order the production of a document in exercise of the powers conferred by this section? There is no mention of production of any document in this section. As a matter of fact this section does not at all refer to any document or documentary evidence. Under this circumstance can it be said that a Court can order the production of a document in exercise of the powers conferred by this section? It is obvious that this could not be done inasmuch as there is no provision in this section for calling for any document whatsoever. The whole section mentions only the examination of any person as a witness and not of production of any document." In a judgment, reported in (2002) 1 East Criminal Cases 21 (Pat) Vindhyawashini Prasad @ Vindhyawashini Prasad Verma, the Hon'ble Court has held that the court below has exceeded his power under section 311 of the Code by calling for certain documents from the parties and from the registration office, since under the provisions of Section 311 of the Code, documents can not be called, produced or proved in a trial. 9. In the instant case, the prosecution after examination of all its witnesses filed the petition with prayer to direct the committee to produce some documents. In view of the discussions made above, which becomes clear that the trial court is not empowered under Section 311 of the Code to call for certain documents. Hence, the order impugned dated 27.4.2015 passed by learned Chief Judicial Magistrate, Lohardaga is, hereby, set aside. 10. The revision is, accordingly, allowed.