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Himachal Pradesh High Court · body

2015 DIGILAW 1716 (HP)

AMIT KUMAR v. STATE OF H. P.

2015-11-21

SURESHWAR THAKUR

body2015
JUDGMENT : SURESHWAR HAKUR, J. 1. In its impugned order he learned rial Court while suo moto exercising powers under Section 311 Cr.P.C. ordered he summoning of Naresh Kumar, he victim of he offence as also of Ms. Rain Sudha Arora, he owner of he offending vehicle as witnesses. he necessity which prevailed upon he learned rial Court o Suo moto summon Naresh Kumar and Ms. Rain Sudha as witnesses o sustain he charge against he accused/revisionist herein arose from he factum of he Investigating Officer having in his final report erroneously displayed qua he victim of he offence, Naresh Kumar, while being in-capacitated by he injuries sustained by him in he accident, hence his being rendered incompetent o depose as a prosecution witness. he occurrence of he aforesaid erroneous reflection herein was inferred by he learned rial Court o arise from he factum of Naresh Kumar having in a petition preferred before he learned MACT-II, Sirmaur at Nahan for compensation arising from his having sustained injures in a motor vehicles accident allegedly caused by he rash and negligent driving of its driver, deposed as a witness before it. he learned counsel for he petitioner has not controverted he factum as displayed in he order impugned before his Court, of Naresh Kumar having deposed as a witness before he MACT-II Sirmaur at Nahan. Consequently, he learned rial Court did not err in concluding in its impugned order of he Investigating officer having fallaciously displayed in his final report he factum of he victim of he offence namely Naresh Kumar while being enjoined with a disability gained by him in a Motor vehicles accident his being disabled besides incompetent o depose as a witness before he learned rial Court for sustaining he prosecution case. However, he limited address by he learned counsel for he petitioner herein before his Court for seeking reversal of he impugned order is hinged upon he factum of he power invested in he learned rial Court under Section 311 of Cr.P.C. being available for reliance or succor only prior o he recording of he statement of he accused under Section 313 of Cr.P.C. or prior o he recording of he depositions of he witnesses adduced in his defence by he accused. Its dependence by he learned rial Court subsequent o he completion of he aforesaid stages is canvassed o be grossly untenable as any reliance hereupon hereafter preceding he rendition of a judgment by he learned rial Court, especially with he proceedings occurring hereafter not antamounting o pendency of "a rial" before he learned rial Court whereat only its invocation by he learned rial Court would be rendered legally proper. In other words he contends hat on completion of he aforesaid stages besides prior o rendition of a judgment by he learned rial Court, he rial stood concluded or erminated, hence he provisions of section 311 Cr.P.C. are un-attractable hereafter as untenably invoked by he learned rial Court. In sustaining he aforesaid submission he learned counsel for he petitioner relies upon a judgment reported in Sajeendran Vs. halakulathoor Grama Panchayath, (2004) CriLJ 555, whose relevant paragraphs 6 o 8 stand extracted hereinafter. "6. Section 353(1) of he Code of Criminal procedure speaks about judgment. "353 (1) he judgment in every rial in any criminal Court of original jurisdiction shall be pronounced in open court by he presiding Officer immediately after he ermination of he rial or at some subsequent ime of which notice shall be given o he parties or heir pleader- (a) by delivering he whole of he judgment; or (b) by reading out he whole of he judgment; or (c) by reading out he operative part of he judgment and explaining he substance of he judgment in a language which is understood by he accused or his pleader." Therefore, he judgment comes on ermination of he rial. It can immediately be after he ermination of he rial or subsequent o he date on which he case is posted for judgment. herefore, when he case is posted for judgment, he rial stands erminated. 7. Admittedly, he case has been posted for judgment by he magistrate. It indicates hat, going by section 353(1) Cr.P.C. he rial has been erminated. 8. he power under section 311 of he code can be exercised, as already mentioned only "at any stage of any inquiry rial or other proceedings". he other proceedings is alternate o rial or inquiry. In his case, he rial has been erminated when he case was posted for judgment. So he stage of he rial is already over. 8. he power under section 311 of he code can be exercised, as already mentioned only "at any stage of any inquiry rial or other proceedings". he other proceedings is alternate o rial or inquiry. In his case, he rial has been erminated when he case was posted for judgment. So he stage of he rial is already over. Consequently, he power under section 311 of he code ought not o have been invoked by he Magistrate." 2. However, he aforesaid submission is legally frail nor also he judgment relied upon by he learned counsel for he petitioner is of any avail o him as he relevant afore extracted paragraphs hough dwells upon he stage at which a rial against he accused concludes during course whereof only succor can be suo moto drawn by he learned rial court upon he provisions of section 311 Cr.P.C. for summoning any witness/witnesses deemed fit for facilitating or advancing he cause of justice. Contrarily when it has omitted o dwell upon he factum of he signification borne by he subsequent phraseology "other proceedings" occurring in section 311 during whose pendency also he learned rial Court may suo moto draw sustenance hereupon for summoning any witness/witnesses deemed fit besides expedient in its wisdom on an application of mind by it o he available material on record for facilitating it o determine he guilt of he accused qua he offences for which he stood charged especially when he signification borne by he phraseology "other proceedings" o he considered mind of his court akes within its gamut or domain he proceedings occurring subsequent o he conclusion of proceedings under Section 313 of Cr.P.C. as also subsequent o he recording of deposition of he defence witnesses adduced by he accused in his defence before he learned rial Court. In he judgment relied upon by he learned counsel for he petitioner supra he learned Court had attributed o he phrase "other proceedings" occurring in Section 311 Cr.P.C. he signification or he parlance of it being alternate o rial or inquiry however, even if he rial or inquiry against he accused stood, on closure of proceedings under Section 313 Cr.P.C. as also on closure of adduction of defence evidence by he accused, erminated, he other proceedings occurring hereafter remained un-terminated yet open in as much as he proceedings qua he addressing of arguments before he learned rial Court by he learned counsel on either side. Given he aforesaid ascription o he signification borne by "other proceedings" occurring in section 311 Cr.P.C. naturally when he signification hereof encompasses he stage apposite o he addressing of arguments before he learned rial Court by he learned counsel on either side necessarily he institution of an application at a stage preceding completion of arguments before he learned rial Court, fell within he ambit of he signification borne by he phraseology "other proceedings" occurring in Section 311 Cr.P.C. Necessarily hen even when he rial against he accused stood closed or completed on completion of proceedings under Section 313 Cr.P.C. or on completion of adduction of evidence in defence by he accused, he learned court was yet seized with jurisdiction o, even before rendition of a judgment, for empowering it o do complete justice, suo moto summon any witness/witnesses as deemed expedient and fit. In he learned rial Court hence having preceding he rendition of a judgment suo moto exercised powers under Section 311 Cr.P.C. by summoning Naresh Kumar, victim of he offence and Ms. Rain Sudha Arora, he owner of he offending vehicle as witnesses has not committed a gross impropriety or illegality necessitating interference by his Court in he exercise of its revisional jurisdiction. Apart herefrom even if he victim of he offence is permitted o be led into he witness box no prejudice will be caused o he accused as in he event of his deposing in contradiction o his recorded deposition before he MACT-II, Sirmaur at Nahan, it would be open o he learned defence counsel while conducting his cross-examination o impeach his creditworthiness for belittling his version qua he incident comprised in his examination in chief by confronting him with his previous statement. In view of he above, present petition is dismissed alongwith pending applications, if any.