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2015 DIGILAW 333 (RAJ)

Gaffur Khan v. Kishan Lal

2015-02-04

VIJAY BISHNOI

body2015
JUDGMENT : Vijay Bishnoi, J. This criminal misc. petition under Sec. 482 CrPC has been filed by the petitioner being aggrieved with the order dated 19.9.2013 passed by the Sessions Judge, Churu (hereinafter referred to as 'the Revisional Court'), whereby a revision petition filed by the petitioner against the order dated 5.4.2013 passed by the Judicial Magistrate (First Class), Churu (hereinafter referred to as 'the Trial Court') has been dismissed. 2. The petitioner is facing proceedings under Sec. 138 of Negotiable Instruments Act, initiated at the instance of the sole respondent, in those proceedings the Trial Court vide order dated 5.4.2013, while exercising the powers under Sec. 311 CPC, has summoned the complainant PW-1 Kishan Lal for the purpose of giving further evidence. 3. The Trial Court on 3.4.2013, after recording the prosecution evidence and the defence evidence, has finally heard the arguments of learned counsel for the respective parties and fixed the matter for pronouncement of judgment on 5.4.2013. However, on 5.4.2013, the Trial Court has passed the impugned order, wherein it is observed that while perusing the record of the case, it is noticed that the documents which were relied upon by the complainant in his evidence have not been exhibited due to an error on the part of the Court. After observing this, the Trial Court has held that the error committed is of technical nature and for such error, any of the party could not be deprived of justice and the Court, while exercising the powers under Sec. 311 CrPC can recall a witness for reaching just decision of the case. 4. Being aggrieved with the order dated 5.4.2013 passed by the Trial Court, the petitioner has filed the revision petition before the Revisional Court, however, the Revisional Court has dismissed the said revision petition while observing that the parties are not made to suffer for the error committed by the Court or by the advocate and the Trial Court after noticing the error of technical nature, has rightly exercised the powers under Sec. 311 CrPC for giving just decision in the case. 5. Learned counsel for the petitioner has argued that the order passed by the Trial Court on 5.4.2013 is illegal because the Magistrate has no power to review its own order. 5. Learned counsel for the petitioner has argued that the order passed by the Trial Court on 5.4.2013 is illegal because the Magistrate has no power to review its own order. It is contended that once the Court has finally heard the arguments of the respective counsels of the parties and fixed the matter for pronouncement of judgment, then it has no power to review its own order and to order for- recalling of prosecution witness. 6. In support of the above contentions, learned counsel for the petitioner has placed reliance on a decision of Hon'ble Supreme Court rendered in M/s. IRIS Computers Ltd. v. M/s. Askari Infotech Pvt. Ltd. & Ors., reported in 2014 (1) NIJ 366 (SC) : 2014 (1) CCC 862 (SC). 7. Learned counsel for the petitioner has further argued that by passing of the order dated 5.4.2013, the Trial Court has attempted to fill up a lacuna in the case of the prosecution and the same may cause serious prejudice to the petitioner. It is also submitted that the order of the Trial Court gave an unfair advantage to the opposite party and, therefore, the same is not sustainable in the eye of law. In support of this contention, learned counsel for the petitioner has placed reliance on a decision of Hon'ble Supreme Court rendered in Natasha Singh v. CBI (State), reported in 2013 CrLR (SC) 582. 8. Learned counsel for the petitioner has further submitted that the Revisional Court has not taken into consideration the law laid down by the Hon'ble Supreme Court in the above referred cases and passed the impugned order dated 19.9.2013 in mechanical manner. 9. On the strength of the above arguments, learned counsel for the petitioner has prayed that this criminal misc. petition may kindly be allowed and the orders passed by the Courts below may kindly be set aside. 10. Heard learned counsel for the petitioner and perused the impugned orders. 11. 9. On the strength of the above arguments, learned counsel for the petitioner has prayed that this criminal misc. petition may kindly be allowed and the orders passed by the Courts below may kindly be set aside. 10. Heard learned counsel for the petitioner and perused the impugned orders. 11. Sec. 311 CrPC reads as under : - "Any Court may, at any stage of any inquiry, trial or other proceedings 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." 12. From bare reading of the above provision it is clear that by using the words 'any Court', 'at any stage', or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' the legislature do not intend to limit the discretion of the Court in any way as the provisions of this Section have been expressed in widest possible terms. While exercising the power under Sec. 311 CrPC the determining factor for the Court should be whether summoning/recalling of any witness is in fact, necessary for the just decision of the case. 13. In the case in hand, the Trial Court has not pronounced the judgment and, therefore, it can be held that the trial against the petitioner under Sec. 138 Negotiable Instruments Act:has not been concluded till date. The Trial Court has taken into consideration the fact that the documents on which the complainant has placed reliance, have not been exhibited due to the error committed on the part of the Court. 14. The Hon'ble Supreme Court in Zahira Habibullah H. Sheikh & Anr. v. State of Gujarat & Ors., reported in AIR 2004 SC 3114 interpreting the Sec. 311 CrPC has held as under: - "38. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in rational to proceedings, even if a fair trial is till possible, except at the risk of undermining the fair name and standing of the judges or impartial and independent adjudicators. 39. ...... 40. ...... 41. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny. 42...... 43. .... 44....... 45..... 46. The Court have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Sec. 311 of the Code and Sec. 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Courts cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands to such prosecuting agency showing indifference or adopting an attitude of total aloofness. 47..... 48..... 49. Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth and subserve the ends of justice. Sec. 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by Courts to power under this Section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a justice decision in the case." 15. The Hon'ble Supreme Court in Zahira Habibullah H. Sheikh & Anr. v. State of Gujarat & Ors., reported in AIR 2004 SC 1367 has reiterated the same principle of law. 16. When the Trial Court has come to conclusion that the documents on which the-complainant is placing reliance have not been exhibited on account of an error committed by the Court itself, it is the duty of the Presiding Judge to rectify the said error and in the present case, the Trial Court has simply rectified the error committed by it and has ordered for recalling of the prosecution witness and this Court is of the opinion that the Trial Court has rightly done so. 17. The judgment of the Hon'ble Supreme Court rendered in M/s. IRIS Computers Ltd. (supra) is quite distinguishable on the facts because in that case, initially the Magistrate had issued the summons to the accused persons on a complaint filed by the person under Sec. 138 Negotiable Instruments Act but later on, had recalled the said order and returned the complaint on the ground of lack of territorial jurisdiction and also recalled the summons to the respondent on the application filed by the respondent. 18. In the present case, no such situation is there and in fact the Trial Court has not recalled any of its earlier order and simply exercised the power under Sec. 311 CrPC before the conclusion of the trial. 19. The judgment of the Hon'ble Supreme Court rendered in Natasha Singh (supra) has reversed the order passed by the Delhi High Court of rejecting the application of the appellant under Sec. 311 CrPC. 19. The judgment of the Hon'ble Supreme Court rendered in Natasha Singh (supra) has reversed the order passed by the Delhi High Court of rejecting the application of the appellant under Sec. 311 CrPC. In that case, the Hon'ble Supreme Court has observed that an application under Sec. 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the 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. 20. In the present case, the action of the Trial Court of recalling the prosecution witnesses cannot be termed as action to fill up a lacuna in a case of prosecution. The Trial Court has recalled the witnesses only to rectify the technical error committed by it by not exhibiting the documents on which the complainant placed reliance. Hence, the case of Natasha Singh (supra) is also of no help to the petitioner. 21. In view of the above discussions, I do not find any merit in this criminal misc. petition. The same is, therefore, dismissed. Stay petition also stands dismissed. Petition Dismissed.