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Madhya Pradesh High Court · body

2016 DIGILAW 1043 (MP)

Shivshankar Mandil v. G. S. Lamba

2016-11-18

G.S.AHLUWALIA

body2016
ORDER 1. This is a petition under section 482 of CrPC filed for quashing the order dated 28.5.2016 passed by the Special Judge (Electricity Act), Morena in Case No.194/2005. 2. By the impugned order dated 28.5.2016, the application filed by the applicant for production of documents pertaining to grant of loan to M/s. Deepti Polycon, Jiwajiganj, Morena from SBI Jivajiganj Branch, Morena as well as the register of registration from the office of District Industrial Centre, Morena in respect of M/s. Deepti Polycon, Morena has been rejected. 3. It is the case of the complainant, that a complaint under sections 135 and 151 of Electricity Act has been filed against the applicant as an accused No.2, whereas the accused No.1 Ramjidas is prosecuted being the proprietor of M/s. Deepti Polycon. 4. It was the case of the respondent that on 7.9.2005, the vigilance team had carried out the inspection in the premises of the factory and it was found that the electric metres were interpolated as a result of which they were not giving proper reading and thus there was a theft of electricity. 5. The respondent examined their witnesses. In the cross-examination of these witnesses, specific stand was taken by the applicant that he is not a proprietor of M/s. Deepti Polycon and has wrongly been implicated in the matter. 6. By filing an application under section 243(2) of CrPC, the applicant made a prayer to the trial Court for summoning the documents mentioned in the application, in order to show that he is not the proprietor of the factory and, therefore, he cannot be held liable for manipulation of the electricity meter, if any. 7. Application was opposed by the respondents. 8. The trial Court by the impugned order dated 28.5.2016 has rejected the application on the ground that the person who is a proprietor as well as the person who is using the premises are consumer. Therefore, the person who was using the premises is also liable to be punished under section 135(1) of Electricity Act, if it is found that there was theft of electricity. 9. Therefore, the person who was using the premises is also liable to be punished under section 135(1) of Electricity Act, if it is found that there was theft of electricity. 9. Further more, it was held that if the applicant wants to produce any document pertaining to the title of M/s. Deepti Polycon, then he can obtain the said documents from the concerned department in accordance with law and therefore, the prayer for summoning the documents pertaining to grant of loan as well as the registration of M/s. Deepti Polycon Factory was rejected. 10. The learned counsel for the applicant submitted that he is required to prove his defence and at this stage unless and until the trial Court comes to the conclusion that the documents are not relevant and the application has been filed with intention to delay or vex the proceedings or for defeating the ends of justice, the opportunity of leading defence evidence cannot be denied. The trial Court should have summoned the documents. It is further submitted that in the impugned order, merely by saying that the person who is also in possession of the premises is responsible for theft of electricity, nothing has been held that the documents which are sought to be summoned are not relevant. 11. Per contra, the learned counsel for the respondents submitted that the applicant has already produced certificate from the Office of Commercial Tax in relation to firm M/s. Deepti Polycon to show that the accused No.1 Ramjidas was the proprietor of the firm and, therefore, the documents which applicant wants to summon are not relevant. Further it is submitted by the counsel for the respondents that the applicant had signed the Panchnama, which was prepared under sections 126 and 135 of Electricity Act, 2003. Thus, it is clear that at the time of inspection he was present in the premises. Accordingly, it is submitted by the consel for the respondents that since the applicant is also in possession of the premises of M/s. Deepti Polycon, therefore, he is also responsible for the theft of electricity. 12. Heard the learned counsel for the parties. 13. Thus, it is clear that at the time of inspection he was present in the premises. Accordingly, it is submitted by the consel for the respondents that since the applicant is also in possession of the premises of M/s. Deepti Polycon, therefore, he is also responsible for the theft of electricity. 12. Heard the learned counsel for the parties. 13. Section 243(2) of CrPC read as under :- “(2) If the accused, after he has entered upon his defence applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing; Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.” 14. It is well established principle of law that fair trial is the main object of criminal law and it should not be hampered in any manner. Fair trial must be accorded to every accused. Denial of fair trial is as much injustice to the accused and justice should not only be done, it should be seen to have been done. 15. In the case of J. Jayalalithaa and others v. State of Karnataka and others, reported in (2014)2 SCC 401 , it is held as under :- “that free and fair trial is sina qua non of Article 21 of the Constitution. Right to get fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. 16. The Supreme Court in case of T. Nagappa v. Y. R. Muralidhar, reported in (2008)5 SCC 633 , has held that “the right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of sub-section (2) of section 243 of the Code of Criminal Procedure”. 16. The Supreme Court in case of T. Nagappa v. Y. R. Muralidhar, reported in (2008)5 SCC 633 , has held that “the right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of sub-section (2) of section 243 of the Code of Criminal Procedure”. It is further held “that it is the accused who knows how the prove the defence and what should be the nature of the evidence is not a matter should be left only to the discretion of the Court”. 17. However, the Court must determine that whether the application filed by the applicant accused is bona fide or not or whether he intends to bring on record the relevant material or not. At the same there cannot be doubt that accused should not be allowed to unnecessarily protract trial or summon witness whose evidence would not be at all relevant. 18. If the facts of the present case are considered in the light of the provision of section 243(2) CrPC, it is clear that the applicant intends to establish the fact that he is not the proprietor of M/s. Deepti Polycon. If he wants to summon the doucments to show that the accused No.1 Ramjidas was the proprietor then he must get fair opportunity to prove the defence. Even the trial Court while rejecting the application has not held that the documents which the applicant wants to summon are not relevant. Merely because he can obtain the documents under the Right to Information Act by itself is not sufficient to reject the application, in view of the specific averments made by the applicant in the application that the documents cannot be supplied to him under the Right to Information Act as the same pertains to third party. 19. The trial Court has also not held that the application has been filed to delay the proceedings. The application under section 243(2) of CrPC can be rejected only when the Court comes to a conclusion that the documents sought to be summoned are not relevant and the application has been filed to delay or vex the proceedings. 20. 19. The trial Court has also not held that the application has been filed to delay the proceedings. The application under section 243(2) of CrPC can be rejected only when the Court comes to a conclusion that the documents sought to be summoned are not relevant and the application has been filed to delay or vex the proceedings. 20. Since fair trial is the cardinal principle of law and the accused must get reasonable opportunity to defend himself and it is for the accused to decide that what evidence he wants to lead in support of his defence, therefore, in the considered view of this Court the applicant must get an opportunity to summon the documents as desired by him. Further merely because the documents are got produced through the Court under section 243(2) of CrPC, it would not mean that the effect of the documents so summoned cannot be seen. Further merely be summoning the documents under section 243(2) of CrPC it would not mean that the accused is not required to prove those documents in accordance with law. The trial Court is still required to decide that whether the accused has succeeded in proving his defence on the basis of those documents or not. 21. Accordingly, the order dated 28.5.2016 passed by trial Court is set aside. The application filed by the applicant for summoning the documents as mentioned in the application, is allowed. 22. As it is evident from the record that the case is pending since 2005. Much delay has already been caused and 11 years have already passed. Therefore, unlimited time cannot be allowed to be given to the applicant to prove his defence, therefore, it is directed that the trial Court shall conclude the trial within a period of three months positively from the date of communication of this order. 23. With the aforesaid observation, the petition filed under section 482 of CrPC is allowed.