Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1430 (ALL)

Lokesh Pal v. State of U. P.

2018-06-15

ASHWANI KUMAR MISHRA

body2018
JUDGMENT & ORDER : ASHWANI KUMAR MISHRA, J. 1. This application under Section 482, Cr.P.C. has been filed to quash the order dated 3.5.2018 passed in Criminal Revision No. 294 of 2017 (Lokesh Pal v. Veer Singh and another), arising out of an order dated 18.9.2017 passed in Criminal Case No. 1751 of 2013 (State v. Veer Singh), under Sections 467, 468, 420, 409, 471, IPC, P.S. Nai Mandi, District Muzaffar Nagar in Case Crime No. 74 of 1998. 2. Applicant was not originally named in the charge-sheet, which was submitted against other accused Veer Singh. Applicant, however, has been summoned and made an accused upon an application filed under Section 319, Cr.P.C. at the instance of accused Veer Singh. The trial is pending and prosecution has already adduced its evidence. The evidence led on behalf of prosecution includes statement of PW-1 Devendra Kumar Jain and PW-3 J.D. Sharma. They have also been cross-examined in the matter. PW-1 and PW-3 are retired officers of the department of Commercial Tax of State of Uttar Pradesh. Applicant Lokesh Pal was junior clerk in the department while accused Veer Singh was posted as Senior Clerk/Accountant in the same office. Criminal proceedings have been initiated with the allegation that substantial amount of public money received and mentioned in the daily register from August, 1996 to February, 1997 have not been deposited in the treasury. 3. Accused Veer Singh has submitted certain documentary evidence after conclusion of prosecution case and thereafter moved an application for summoning PW-1 and PW-3 as DW-1 and DW-2 to prove the documents filed before the court. This application has been allowed by the court of Magistrate on 18.9.2017. Aggrieved by this order, the applicant has filed revision, which has been rejected by the order impugned. 4. The revision had been filed with the allegation that once PW-1 and PW-3 have appeared as prosecution witnesses and they have also been cross-examined, the same set of persons could not be summoned and produced as defence witnesses. This plea, however, has been rejected. 5. Reliance is placed on behalf of applicant upon the judgment of Apex Court in State of Madhya Pradesh v. Badri Yadav, (2006) AIR SC 1769 : 2006 (3) SCC (Cri) 337 and also upon a decision of Chhattisgarh High Court in Gaurav Sonkar and another v. State of Chhattisgarh, (2017) CriLJ 253. This plea, however, has been rejected. 5. Reliance is placed on behalf of applicant upon the judgment of Apex Court in State of Madhya Pradesh v. Badri Yadav, (2006) AIR SC 1769 : 2006 (3) SCC (Cri) 337 and also upon a decision of Chhattisgarh High Court in Gaurav Sonkar and another v. State of Chhattisgarh, (2017) CriLJ 253. Learned counsel has also placed reliance upon a judgment of Madhya Pradesh High Court in Pappu alias Chandra Pravesh Tiwari v. State of Madhya Pradesh, (2013) CriLJ 3707, in support of his plea. 6. This application is opposed by learned A.G.A. 7. I have heard learned counsel for the applicant as also learned A.G.A. for the State and have perused the materials brought on record. 8. Section 233 of the Code of Criminal Procedure, 1973 provides for the accused to enter on his defence and adduce any evidence, he may have in support thereof. Section 233, Cr.P.C. is reproduced:- "233. Entering upon defence. (1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, 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." 9. Sub-Section (3) of Section 233, Cr.P.C. provides that if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground mat it is made for the purpose of vexation or delay or for defeating the ends of justice. The right upon accused to enter his defence and adduce his evidence is an important right, which is not hedged by any restriction except where the court is satisfied that such an application is made for vexatious purpose or delay or for defeating the ends of justice. 10. The right upon accused to enter his defence and adduce his evidence is an important right, which is not hedged by any restriction except where the court is satisfied that such an application is made for vexatious purpose or delay or for defeating the ends of justice. 10. In Badri Yadav, the Hon'ble Supreme Court was considering a criminal appeal arising out of proceedings under Section 302/34, IPC. The facts of the case were noticed wherefrom it appears mat prosecution witnesses were cross-examined. A subsequent application made for recalling the witnesses under Section 311 and for their re-examination was rejected. Same witnesses, who had seen the offence and already deposed before the court, were again sought to be questioned as defence witnesses. It was in this context mat the Hon'ble Supreme Court observed as under:- "12. Section 233 itself deals with entering upon defence by the accused. The application for recalling and re-examining persons already examined, as provided under Section 311, Cr.P.C., was already rejected. The power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the Court in case such evidence appears to it to be essential for a just decision of the case. Under Section 233, Cr.P.C, the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as DWs. In the present case PW-8 and PW-9 were juxtaposed as DW-1 and DW-2. This situation is not one what was contemplated by sub-section (3) of Section 233, Cr.P.C." 11. In Pappu alias Chandra Pravesh Tiwari, the judgment of the Supreme Court in Badri Yadav has been followed. The facts of the case have been noticed by the High Court to observe that provisions of Section 233(3), Cr.P.C. could not be invoked, inasmuch as no reasons were disclosed as to why the prosecution witnesses were sought to be introduced as defence witnesses. Following observations have been made in para 8:- "8. Under such circumstances, it was for the accused to establish that both the witnesses who were examined as a prosecution witnesses were the defence witness and therefore, examination was necessary. Following observations have been made in para 8:- "8. Under such circumstances, it was for the accused to establish that both the witnesses who were examined as a prosecution witnesses were the defence witness and therefore, examination was necessary. If the application filed by the applicant before the trial Court under Section 233 (3) of Cr.P.C. is perused then, it would be apparent that no reason has been mentioned by the applicant as to why he wanted to examine those two witnesses as a defence witness. What was the kind of defence that he wanted to prove by those witnesses. The applicant did not mention any reason in that application and therefore, it is apparent that when the application under Section 311 of Cr.P.C. was dismissed and that order attained finality, thereafter to defeat that order, an application under Section 233 (3) of Cr.P.C. was moved and therefore, it would be apparent that the applicant's application was 7 Criminal Revision No.2109/2011 not submitted on bonaflde grounds. No defence was to be proved by the applicant from those witnesses but he wanted to re-cross-examine them with the help of the application and therefore, the application moved by the applicant under Section 233(3) of Cr.P.C. for the purpose of vexation and therefore, it could not be allowed under Section 233(3) of Cr.P.C. The trial Court has rightly rejected the application filed by the applicant under Section 233(3) of Cr.P.C. because it was moved only to defeat the previous order of the trial Court under Section 311 of Cr.P.C., which attained the finality." 12. In Gaurav Sonkar also, the aforesaid proposition has been relied upon to hold as under:- "13. So far as the law in respect of the provisions under Section 233, Cr.P.C. is concerned, in the opinion of this Court, the Court below has aptly referred to the judgment of the State of M.P. v. Badri Yadav and Anr., (2006) AIR SC 1769 wherein in paragraph 12 the Hon'ble Supreme Court has in very categorical term expressed that: "There is no provision in the Code of Criminal Procedure that by filing affidavit the witnesses examined as P.Ws. (PW-8 and PW-9 in this case) could be juxtaposed as DW-1 and DW-2 and be examined as defence witnesses on behalf of the accused." Similarly, in paragraph 14 of the same judgment the Supreme Court again has held that: "The provisions of sub-section (3) of Section 233, Cr.P.C. cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as Dws." 14. The judgment of the Supreme Court very clearly indicates that the provisions under Section 233, Cr.P.C. should not be permitted for the defence to move an application for calling upon a prosecution witness who has been examined and cross-examined at one point of time and later on has to be called as a defence witness to give entirely contradictory statement from what has already been given earlier as a prosecution witness. 15. If we peruse the provisions under Section 233, Cr.P.C., it clearly gives an indication that the said provision is to be attracted after the prosecution evidence is closed and that the Court has reached to the conclusion that prima facie, there is sufficient material against the accused persons for proceeding further with the case and at that time the accused persons can bring his defence witness and adduce any evidence in support of their defence. It further envisages that under Section 233, Cr.P.C. if the accused persons take for issuance of any process for compelling the attendance of any witness or production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded 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. This itself clearly indicates that it is not a matter of right that the accused persons can initiate process for compelling any prosecution witnesses to be adduced as defence witness just to make a statement in contrast what they have earlier made. On the contrary, it refers to the fact that in a given facts and circumstances of the case the Court below can reject the request of the accused persons seeking for calling upon a person as a witness in case if there are justified reasons. 16. On the contrary, it refers to the fact that in a given facts and circumstances of the case the Court below can reject the request of the accused persons seeking for calling upon a person as a witness in case if there are justified reasons. 16. In the instant case, the justified reasons is explicit from the record itself that of the prosecutrix whom the defence intends to call as a defence witness has already been examined as a prosecution witness and has also been cross-examined elaborately by the defence and only because subsequently the prosecutrix has changed her mind and filed an affidavit, she cannot be permitted to be called as a defence witness in the same case." 13. Perusal of the aforesaid judgments would clearly go to show that prosecution evidence cannot be compelled to attend as witness at the instance of accused as defence witness, just to make a statement in contrast to what has earlier been deposed as prosecution witness. Such a plea would clearly defeat the ends of justice, and therefore, would be impermissible in view of Section 233(3), Cr.P.C. as defeating the ends of justice. 14. Facts of the present case are, however, quite distinct. PW-1 and PW-3 have been examined and cross-examined. The accused Veer Singh at the stage of adducing defence witness has produced certain documents in order to substantiate his defence at trial. These documents apparently are records of the department and prayer has been made to summon PW-1 and PW-3 as defence witnesses to prove those documents. The object of securing attendance of witness is not to contradict what has already been stated by them as prosecution witnesses, but is to prove the documents filed in his defence. Both the courts below have found the prayer to be relevant for substantiating his defence and is otherwise not found to be vexatious or for delaying or for defeating the ends of justice. 15. Section 233, Cr.P.C. confers an important right upon the accused and unless it is found to be actuated for vexatious or delaying purpose or for defeating the ends of justice, it cannot be curtailed. DW-l and DW-2 have already adduced their evidence, which is otherwise on record. The statements of DW-1 and DW-2 are not shown to be contradicting their earlier statement and apparently they have been adduced to prove die documents relied upon in evidence. DW-l and DW-2 have already adduced their evidence, which is otherwise on record. The statements of DW-1 and DW-2 are not shown to be contradicting their earlier statement and apparently they have been adduced to prove die documents relied upon in evidence. Such documentary evidence is otherwise required to be proved in terms of Section 294 of the Code of Criminal Procedure. The right of applicant to produce his evidence, in defence, is otherwise not curtailed in any manner. The prosecution, which has to prove his case has also not objected to the prayer made by the accused Veer Singh. 16. In the facts and circumstances, noticed above, there is no illegality in the orders of the courts below or abuse of the process of law, which may require any interference of this Court under Section 482, Cr.P.C. 17. Application u/S. 482, Cr.P.C. is, accordingly, rejected.