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Himachal Pradesh High Court · body

2015 DIGILAW 1623 (HP)

Ramesh Chauhan v. Rajvir Singh

2015-11-03

SURESHWAR THAKUR

body2015
JUDGMENT : SURESHWAR THAKUR, J. 1. The petitioner herein/accused had filed three applications before the learned trial Court, one application was filed under Section 311 Cr.P.C, another under Section 315 Cr.P.C and a third application was filed under Section 45 of the Indian Evidence Act. 2. Before proceeding to render an adjudication upon the tenability of the renditions of the learned trial Court impugned before this Court, it is imperative to advert to the factum of the learned trial Court having closed the right of the accused petitioner herein to adduce evidence in defence. The order of the learned trial Court closing the right of the accused/petitioner herein to adduce evidence in defence was assailed before the learned Sessions Judge, Shimla, who while disposing of the revision petition as preferred before it, by the aggrieved, assailing it, modified the order of the learned trial Court whereby it closed the right of the petitioner herein/accused, to adduce evidence in defence, by directing the learned trial Court to afford to the petitioner herein a right to adduce evidence in defence within a period of nine months. However, the petitioner herein yet did not avail the opportunity afforded to him by the learned Sessions Judge to adduce his evidence in defence. Consequently, the learned trial Court was constrained to subsequently order for the closing of the opportunity to the petitioner herein to adduce his evidence in defence. The said order was assailed by the petitioner herein by his instituting Cr.MMO No. 27 of 2015 which petition came to be dismissed by this Court. In face thereof the sequelling ensuing inference is of the petitioner herein being subsequent to the rendition of this Court in Cr.MMO No. 27 of 2015 being consequently debarred to adduce his evidence in defence. The petitioner concerted to move the aforesaid applications before the learned trial Court which vide a common order came to be dismissed. Both the applications under Section 311 Cr.P.C and the application under Section 315 Cr.PC. were both maintainable as well as amenable for acceptance by the learned trial Court, only in the event of the petitioner herein having established that in the garb of the aforesaid applications instituted by him before the learned trial Court, he has not endeavoured to circumvent the conclusive orders of the learned trial Court whereby his right to adduce evidence in defence stood closed. In determining whether the petitioner, has by his taking to subsequently institute applications under Section 311 Cr.P.C and under Section 315 Cr.P.C. before the learned trial Court concerted to circumvent the conclusive orders of the learned trial Court closing his right to adduce evidence in defence, it is imperative to peruse the contents of the applications constituted under Section 311 Cr.P.C. as well as under Section 315 Cr.P.C. There is a manifestation in paragraph 2 of the application under Section 311 Cr.P.C. of the petitioner herein concerting to bring on record certain documents before the learned trial Court inasmuch as affidavit of 4.5.2009, receipt of 7.6.2010, affidavit of 7.2.2015 executed by Narinder Kumar and to also examine him, for a just decision of the case. The effort on the part of the petitioner herein to, through his application under Section 311 Cr.P.C. preferred before the learned trial Court adduce into evidence the aforesaid documents appears to be a cleverly devised machination on his part, to circumvent the order of the learned trial Court whereby his right to adduce evidence in defence stood closed. Even though the amplitude of the plenary power conferred upon the trial Court under Section 311 Cr.P.C. takes within its ambit any application preferred “at any stage” of any inquiry, trial or proceeding under the Code by either the prosecution or the accused or to summon any person as a witness though not summoned in person besides to recall or re-examine any person already examined. Nonetheless, the plenary powers conferred thereunder upon the trial Court qua it being empowered to “at any stage” of inquiry, trial or any proceedings receive any application preferred before it either by the prosecution or the defence or summon any witness or recall any of the witness, cannot be interpreted or read in isolation vis-a-vis orders recorded by the learned trial Court whereon though opportunities stood afforded to the accused to adduce his evidence in defence, he yet omits to avail of such opportunities, constraining the learned trial Court to record an order closing his right to adduce evidence in defence. Moreso when the order of the learned trial Court closing the right of the accused to adduce his evidence in defence attains conclusivity rendering hence the provisions of Section 311 Cr.P.C. resorted to by the petitioner herein subsequent to the aforesaid conclusive order of the learned trial Court, to be unavailable for reliance by him nor reliefs thereupon were affordable to him, as vindicating such an endevaour on the part of the accused would tantamount to this Court, proceeding to both subvert the order of the learned trial Court whereby the right of the accused to adduce evidence in defence stood conclusively closed besides would also tantamount to countenancing an attempt on the part of the accused petitioner herein, to in the guise of his relying upon the provisions of Section 311 of the Cr.P.C. circumvent the conclusive orders of the trial Court whereby his right to adduce evidence in defence stood closed. 3. Apart therefrom immense succor to the inference aforesaid derived by this Court, of the applications instituted by the petitioner subsequent to the conclusive rendition of the trial Court whereby it closed the right of the accused to adduce evidence in defence, under Section 311 Cr.P.C. and under Section 315 Cr.P.C. being nothing but a cleverly resorted machination on his part to wriggle out beside evade the conclusive rendition of the learned trial Court closing his right to adduce evidence in defence, is garnered by the factum that all the pieces of evidence proposed to be adduced through application under Section 311 Cr.P.C. constituted a part of the defence of the accused which right of the accused to adduce them in evidence in his defence, stood closed by a conclusive rendition of the learned trial Court. As a natural corollary, if the application under Section 311 Cr.P.C. besides the application under Section 315 Cr.P.C. had come to be allowed, it would have facilitated the petitioner herein to adduce evidence in defence which opportunity to him to adduce evidence in defence previously remained unavailed of by him constraining the learned Judge to close his right to adduce evidence in defence. In revering the espousal of the learned counsel for the petitioner herein it would subvert besides erode the essence of the provisions of Section 311 Cr.P.C which are meant to be resorted to only when they are not preceded by a conclusive order of the learned trial Court closing the opportunity of the accused to adduce his evidence in defence. Moreover, the salient nuance borne by the parlance “at any stage” existing in Section 311 Cr.P.C. which stands extracted hereinafter, is of its permitting the defence to adduce evidence in defence besides its permitting the prosecution to resort to its provisions, only when there are no previous conclusive renditions of the trial Court closing the right of the accused to adduce evidence in defence or its conclusively closing the right of the prosecution to adduce its evidence. If any interpretation than the one aforesaid is afforded to the parlance borne by the phrase “at any time” existing in Section 311 of the Cr.P.C. it would open pave way for subversion of besides circumvention of a conclusive rendition of a trial Court closing the right of the accused to adduce evidence in defence: “311. Power to summon material witness or examine person present- Any Court may, at any stage or 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.” For reiteration when the application under Section 311 Cr.P.C was preceded by a conclusive order of the learned trial Court closing the right of the accused to adduce evidence in defence any reliance by the petitioner upon the provisions of Section 315 Cr.P.C. and upon the provisions of Section 311 Cr.P.C. would subvert the purpose, meaning and the stage when the provisions of Section 311 Cr.P.C. have been contemplated by the legislature to acquire operational force. Even otherwise the provisions of Section 311 Cr.P.C viewed in another perspective acquire force and come into play besides empower the learned trial Judge to summon any person as a witness though not summoned in person or recall or reexamine any person already examined, necessarily then the provisions of Section 311 of the Cr.P.C. hence are rather confined to be exercised by the learned trial Court only qua summoning any person as a witness besides recall or re-examine a person already examined yet it does not extend to facilitate the endeavour of the petitioner herein to in its grab adduce documents into evidence as averred in paragraph 2 of the application and which constitute pieces of evidence in defence of the accused right qua whose right of adduction into evidence by the accused stands closed by a conclusive rendition of the trial Court. Apart therefrom when the provisions of Section 311 were mis-resorted to by the petitioner herein the documents as proposed to be adduced in evidence recited in paragraph 2 of the application under Section 311 Cr.P.C may have been taken to be adduced into evidence by his invoking provisions, other than the one existing in Section 311 of the Cr.P.C. For similarly available analogous reasons, the dismissal of the application of the petitioner under Section 315 Cr.P.C. by the learned trial Court is sustainable. The outcome of the above discussion is that the order of the learned trial Court dismissing the applications of the petitioner herein preferred by him before it under the provisions of Section 311 and Section 315 of the Cr.P.C. is both sustainable as well as vindicable.” 4. Now the validity of the order of the learned trial Court in refusing relief to the petitioner herein in an application preferred by him before it under Section 45 of the Indian Evidence Act has to be gauged. The learned trial Court in ordering to refuse relief to the petitioner herein in an application preferred by him before it under Section 45 of the Indian Evidence Act, has in its order portrayed a legally unsound reason of there being no occurrence in the application qua the scribe of the documents annexed with the application besides one of the documents proposed to be sent for expert opinion inasmuch as Ext.D-2 being in Hindi. Apart therefrom the reason, for its disallowing the apposite application preferred before it by the petitioner herein under Section 45 of the Indian Evidence Act, of theirs already existing sufficient evidence on record other than expert evidence as sought to be elicited by the petitioner for resting the controversy rendered unnecessary the elicitation of an expert opinion on the documents recited in the application, also lacks in legal sustainability. The learned trial Court appears to have been guided by the factum that the conclusive order of the learned trial Court closing the right of the accused to adduce evidence in defence also forestalled him to elicit the opinion of the expert concerned on the disputed documents recorded in the application at hand. However, the provisions of Section 45 of the Indian Evidence Act are independent of both Sections 311 Cr.P.C. and of Section 315 Cr.P.C. besides concomitantly also the operational sway of the conclusive order of the learned trial Court closing the right of the accused to adduce evidence in defence excludes any reliance upon the provisions of Section 45 of the Indian Evidence Act by the petitioner herein especially when the said opinion would both facilitated as well as aided the learned trial Court to render an effective adjudication qua the authorship of the adduced documents. Obviously then, when the application under Section 45 of the Indian Evidence Act was preferable and maintainable at any stage and would have facilitated the learned trial Court to render a judicious pronouncement qua the authorship of the documents recited therein hence the learned trial Court for a legally unsound reason having come to reject the application preferred before it by the petitioner under Section 45 of the Indian Evidence Act, has committed a gross error. In sequel the order of the learned trial Court declining relief to the petitioner herein on his application under Section 45 of the Indian Evidence Act, is setaside. Consequently, the petitions bearing numbers Cr.MMO No. 35 of 2015 and Cr.MMO No. 37 of 2015 are dismissed and the petition bearing number Cr.MMO No.36 of 2015 is allowed. In sequel the order of the learned trial Court dismissing the applications of the petitioner herein both under Section 311 and 315 Cr.P.C is maintained and upheld. However, the findings of the learned trial Court in application under Section 45 of the Indian Evidence Act are set-aside. In sequel the order of the learned trial Court dismissing the applications of the petitioner herein both under Section 311 and 315 Cr.P.C is maintained and upheld. However, the findings of the learned trial Court in application under Section 45 of the Indian Evidence Act are set-aside. Record be sent back forthwith. Parties are directed to appear before the learned trial Court on 15th December, 2015.