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Allahabad High Court · body

2017 DIGILAW 2812 (ALL)

ASAD ALI v. STATE OF U. P.

2017-12-04

RAHUL CHATURVEDI

body2017
JUDGMENT : Hon'ble Rahul Chaturvedi J. 1. Heard Sri Vinay Saran, Advocate, counsel for the revisionist and Shri Amit Mishra, Advocate, counsel for the opposite party no.2 and learned A.G.A. perused the records. 2. By means of instant revision, the revisionist has targeted the order passed by Special Judicial Magistrate (C.B.I.), Ghaziabad declining to entertain the application no. 264A Under Section 311 Cr.P.C. vide order dated 18.11.2017 in Case No. 367 of 2006 (C.B.I. Vs. Imtiaz Alam and others) U/s 420, 120B I.P.C. Police Station C.B.I. S.P.E. Dehradun. 3. In order to appreciate the entire controversy, it is desirable to spell out bare skeleton facts of the prosecution; A. On 02.02.2005 a F.I.R. was registered against (a) Al-Aman International, Moradabad (b) Unknown Officers of office of J.T. D.G.F.T., Moradabad. (c) Unknown officials of Central Excise, Moradabad by one Bhanu Bhaskar, S.P. C.B.I. for hatching a criminal conspiracy, forgery of valuable security, forgery for purpose of cheating, using a forged document as genuine one and criminal misconduct by the public servant. The said F.I.R. was registered as Case Crime No. RC00772005A0005 in year 2005. B. After registering the case, the investigation started rolling and the Investigating Officers after concluding the investigation has submitted charge sheet, on 31.3.2006 against as many as four persons, including the present revisionist Asad Ali son of Mohd. Ibrahim. He was charge sheeted U/s 120B r/w 420 I.P.C. and substantive offence Under section 420 I.P.C. C. After submission of charge sheet, the learned Magistrate has taken cognizance of the offences and all the accused persons were put to trial and resultantly Case No. 367/2006 (C.B.I. Vs. Imtiaz Alam and others) was allotted before Special Judicial Magistrate, C.B.I. Ghaziabad. 4. It was contended by the counsel for revisionist that during the investigation, the Investigating Officers of the case were miserably failed to collect any substantive material or any other documentary evidence, connecting the present revisionist with the functioning of M/s Al-Aman International or any way connected with functioning of the aforesaid Company. 5. During trial the prosecution has produced PW-1 to PW-15 to substantiate their case and the testimony of these witnesses were recorded by the court at different time and occasions. Prosecution took about 11 years to get these fifteen witnesses examined. 5. During trial the prosecution has produced PW-1 to PW-15 to substantiate their case and the testimony of these witnesses were recorded by the court at different time and occasions. Prosecution took about 11 years to get these fifteen witnesses examined. The learned counsel for revisionist has drawn the attention of the court certain anomalies and discrepancies in the testimonies of PW-5, Sayed Aalley Haider and PW-6, Naresh D. Bhanushali qua PW-15 Parthsharthi, Investigating Officer of the case. Their testimonies are relevant for deciding the present revision. I have perused the depositions made by PW-5 and 6 which were recorded way back in the year 2013 to 2015. Whereas the testimony of PW-15 was recorded in year 2017 on different occasions before learned trial court. Their testimonies are relevant for deciding the present revision. I have perused the depositions made by PW-5 and 6 which were recorded way back in the year 2013 to 2015. Whereas the testimony of PW-15 was recorded in year 2017 on different occasions before learned trial court. The learned counsel for the revisionist has led stress upon the portions of depositions of PW-15 to buttress his submissions which are being quoted herein below:- -------esjh foospuk ds xokg Jh l;n vkys] gSnj] tqcSj elwn [kku] foey dqekj iUr] izeksn dqekj 'kekZ bR;kfn xokgksa us vln vyh ds gLrk{kj lEcfU/kr fjyht ,Mokbfll ij igqaapkus FksA i=koyh ij dksbZ esllZ vy veku bUVjus'kuy dk vFkksfjVh ysVj vfHk;qDr vln vyh ds uke ugha gSA eSaus bu gLrk{kj ds lR;kiu ds fy, bu nLrkostksa dks lh-,Q-,l-,y- ds fy, ugha Hkstk FkkA ;g ckr lgh gS fd vfHk;qDr vln vyh ds }kjk esllZ vy veku bUVjus'kuy ds uke ij dksbZ /kujkf'k izkIr djus ds lEcU/k esa dksbZ lk{; ugha gSA xxx xxx ;g ckr lgh gS fd vfHk;qDr vln vyh ls nkSjku foospuk dksbZ Hkh nLrkost ftldk lEcU/k esllZ vy veu bUVjus'kuy ls gks lht ugha fd;k x;k gSA ;g ckr lgh gS foospuk ds nkSjku vfHk;qDr vln vyh ls dksbZ nLrkost ;k lk{; lht ugha fd;k x;k gSA ;g ckr lgh gS fd esllZ vy veu bUVjus'kuy ds }kjk ,MokUl bEiksVZ ykblsUl fdtu nLrkostksa ds vk/kkj ij tkjh djok;k x;k Fkk ml nLrkostksa ij vfHk;qDr vln vyh dk dksbZ gLrk{kj o QksVksxzkQ ugha gSA xxx xxx ;g ckr lgh gS fd foospuk ds nkSjku dksbZ Hkh ,slk cSad [kkrk ugha ik;k x;k tks fd vfHk;qDr vln vyh ds }kjk esllZ vy veu bUVjus'kuy ds lEcU/k esa lapkfyr fd;k tk jgk gksA ;g ckr lgh gS fd esjs }kjk ftu nLrkostksa ij vfHk;qDr vln vyh ds gLrk{kj gksuk crk;k x;k gS mu lHkh gLrk{kjksa dks eSaus tkap ds fy, fdlh Hkh iz;ksx'kkyk esa ugha HkstkA esjs }kjk vfHk;qDr vln vyh ds gLrk{kj tkap ds fy, fdlh Hkh iz;ksx'kkyk esa blfy, ugha Hksts x;s D;ksafd mlds gLrk{kj dks xokg ih0MCyw0 5 lS;;n vkys gSnj rFkk xokg Jh x.ks'k izlkn HkVukxj us igpku fd;s FksA ;g ckr lgh gS fd xokg x.ks'k izlkn HkVukxj dk U;k;ky; ds le{k c;ku vafdr ugha fd;k x;k gSA 6. On the basis of above testimonies of PW-15, the counsel for the revisionist strenuously argued that there is no documentary evidence, or even otherwise against the revisionist connecting that the revisionist anywhere is related or connected with the allegations of fraud or hatching conspiracy for fraud or benefit the accused no.1 M/s Al-Aman International. The PW-15 who is the Investigating Officer of the case has made a categorical statement that only on the oral statements of PW-5 and 6 respectively, the accused/revisionist has been charge sheeted. It is further argued that in the light of self revealing testimony of PW-15, it is become absolutely necessary and essential to call upon PW-5 and 6 once again to confront them with the testimony of PW-15. It is not only desirable in the interest of justice but absolutely necessary to secure the ends of justice that PW-5 and PW-6 may summoned once again in exercise of power U/s 311 Cr.P.C. and to this effect an application No. 264A was moved by revisionist on 9.11.2017. 7. This Court has given a thoughtful consideration over the matter and it was brought to my knowledge that the deposition of PW-15 was concluded on 3.11.2017 and within a span of 6 days the aforementioned application for summoning PW-5 and 6 was moved by the accused/revisionist. 8. Let us examine the true import of Section 311 Cr.P.C.:- Section 311 Cr.P.C. is manifestly in two parts; whereas the word ''used' in the first part is ''may', the word used in the second part is ''shall'. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it ''at any stage of enquiry, trial or other proceedings' under the Code to act in one of the three ways, namely; (1). to summon any person as a witness, or (2). to examine any person in attendance, though not summoned as a witnesses, or (3). to recall and re-examine any person already examined. The second part which is mandatory imposes an obligation on the Court- (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 9. Besides this, the learned counsel for the accused/revisionist has cited certain decisions of Hon'ble Apex Court to lay stress upon his submissions. 10. 9. Besides this, the learned counsel for the accused/revisionist has cited certain decisions of Hon'ble Apex Court to lay stress upon his submissions. 10. Shri Vinay Saran, Advocate, Counsel for the revisionist first and foremost has cited a judgement of RATAN LAL VS.PRAHLAD JAT AND OTHERS 2017 SCC (CRL.) 729. The Hon'ble Apex Court while throwing the light upon very object of Section 311 Cr.P.C. has opined that :- "In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 Cr.P.C. are enacted where under any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the revision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection." 11. Hon'ble Apex Court while rationalizing the above guidelines, has summarized the law laid down by Hon'ble Apex Court in cases of :- (i) Vijay Kumar Vs. State of U.P. 2011(3) SCC (Crl.) 371. (ii) Zahira Habibullah Shekh Vs. State of Gujrat 2006(2) SCC (Crl) 371 and; (iii) State (N.C.T. of Delhi Vs. Shiv Kumar Yadav 2016 (1) SCC (Crl.), 510. 12. After arguing the object of Section 311 Cr.P.C. my attention was drawn to the impugned order passed by learned Magistrate while rejecting application U/s 311 Cr.P.C. dated 9.11.17 on behalf of accused/revisionist. I have gone through the impugned order dated 18.11.17 and the learned Magistrate has primarily rejected the above application on the grounds:- (a). PW-5 and PW-6 were already examined/cross examined by the counsel for the revisionist way back in 2013-2015 and their testimonies are on record. (b) In the application of the revisionist, he has not spelled out the areas/points of re-examination from these witnesses. (c). This application is motivated one with the object to prolong the trial. 13. On the above three grounds, the application was turned down by the learned Magistrate. 14. (b) In the application of the revisionist, he has not spelled out the areas/points of re-examination from these witnesses. (c). This application is motivated one with the object to prolong the trial. 13. On the above three grounds, the application was turned down by the learned Magistrate. 14. It has been contended by the counsel for the revisionist that when the PW-15 Mr. Parthsharthi, the Investigation Officer of the case was put for his cross-examination, then only for the first time, involvement of revisionist was unearthed. Prior to that there was nothing on record to substantiate or connect the present accused/revisionist to implicate for which he has been charged for. The name of the present revisionist came into light only in the cross examination of PW-15, to the extent that it was PW-5 and 6 have orally mentioned the name of revisionist in the functioning of M/s Al-Aman International. Except this, there is nothing concrete or substantial against the accused/revisionist for attracting the penal provisions U/s 420 or 120B I.P.C. In the light of above deposition made by PW-15 which was concluded on 3.11.17 within no time, on the 6th day to be precise, the above mentioned application No. 264-A U/s 311 Cr.P.C. was moved by the revisionist to call upon PW-5 and PW-6 for their re-examination. The grounds taken in the application that, the name of accused/revisionist do not finds place amongst the accused persons in the F.I.R. Even during investigation, there is nothing substantial or even confidence generating, was collected by the various Investigating Officers of the case to connect the revisionist in the functioning of the company M/s Al-Aman International. 15. Unfortunately, all these facts were not on record at the earlier occasion, even in the cross examination of PW-5 and PW-6. As mentioned above, the above mentioned startling revelations were surfaced only after cross examination of PW-15 Mr. Parthsharthi, Investigating Officer of the case. Thus, as per the arguments of the counsel for the revisionist, the present is apt and appropriate case where the discretion of the court U/s 311 Cr.P.C. should be exercised. 16. Per contra, the learned A.G.A. as well as counsel for the opposite party no.2 has pointed out that the trial is of 2006 and at this juncture if the indulgence U/s 311 Cr.P.C. is granted in favour of accused/revisionist, it will further prolong the trial. 16. Per contra, the learned A.G.A. as well as counsel for the opposite party no.2 has pointed out that the trial is of 2006 and at this juncture if the indulgence U/s 311 Cr.P.C. is granted in favour of accused/revisionist, it will further prolong the trial. To lay stress upon the contention, the learned counsel for the opposite party no.2, cited a judgment of Apex Court UMAR MOHAMMAD VS. STATE OF RAJSTHAN 2009 (3) SCC (Crl) 244 wherein the prosecution evidence was closed long back and the reasons for not filing the application U/s 311 Cr.P.C. on earlier point of time was not explained satisfactorily. Entertaining an application at a belated stage of trial without plausible justification is bad in eye of law. 17. But in the instant case, the application was moved by the accused/revisionist on the 6th day of the closure of testimony of PW-15 and thus, the ratio lay down by Hon'ble Apex Court in Umar Mohd.'s case (Supra) is not at all applicable. 18. It has further been contended by counsel for the revisionist that by virtue of the impugned order, the defence of revisionist/accused would be seriously and adversely got prejudiced, he would be deprived of his valuable right to put his defence in a proper and effective way, in the event the PW-5 and 6 are not re-examined in the light of deposition made by PW-15. While assailing the impugned order, the learned counsel for revisionist has placed reliance upon the judgment of Hon'ble Court in the case of Natasha Singh Vs. CBI 2013(5) SCC 741 in which the Hon'ble Court has opined: "The scope and object of Section 311 Cr.P.C. is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. This power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application Under Section 311 Cr.P.C. 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. An application Under Section 311 Cr.P.C. 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. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons and the same must be exercised with great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", any person" and "any such person" clearly spells out that the provisions of Section 311 have been expressed in the widest possible terms, and do not limit the discretion of the court in any way". 19. The fair trial is the primary object and it is the duty of the court to ensure that fairness is not hampered or threatened any manner. Fair trial entails the interest of the accused, the victim and of the society and therefore fair trial includes the grant of fair and proper opportunity to the person concerned, and same must be ensured as this is the constitutional as well as human right. 20. Undoubtedly an application filed U/s 311 Cr.P.C. ought to have been allowed if a fresh evidence is being produced to facilitate a just decision, however, in the instant case, the trial court pre-judge the evidence of the witness sought to be examined by the appellant/accused and thereby cause grave and material injustice to the revisionist/accused. The grounds on which the application U/s 311 Cr.P.C. was rejected are wholly untenable and stranger to the fair criminal trial and that would seriously cause prejudice to accused/revisionist. 21. The grounds on which the application U/s 311 Cr.P.C. was rejected are wholly untenable and stranger to the fair criminal trial and that would seriously cause prejudice to accused/revisionist. 21. Thus keeping in view the objective of Section 311 and the consistent stand of Hon'ble Apex Court in this regard, the impugned order passed by Special Judicial Magistrate, Ghaziabad dated 18.11.17 looses its ground and consequently set-aside with the direction that the revisionist would appear either himself or through his counsel by moving a fresh application, framing the areas/questioner for re-examining the PW-5 and 6 respectively and submit the same on or before 25th January, 2018 before the court concern. After having that application, the concern Judicial Magistrate would fix a date on which the counsel for the revisionist would cross-examine PW-5 and 6 without unreasonable delay. It is made clear that if on the date fixed, either the revisionist or his counsel does not appear or participate in the trial proceeding, this right of revisionist shall stand closed and the trial court would be at its fullest of the liberty to proceed with the trial as expeditiously as possible, keeping in view the trial is of 2006 and would make all necessary endeavour to conclude the same within 8 months from the production of certified copy of the order before him, strictly in accordance with law. 22. Thus on the above reasoning and discussions, the present revision stands allowed and the order of learned Special Judicial Magistrate, CBI Ghaziabad dated 18.11.2017 rejecting the application No. 264A U/s 311 Cr.P.C. is set-aside with the above directions. There is no order as to costs.