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2019 DIGILAW 913 (GAU)

Pranjyoti Hazarika v. State of Assam

2019-08-16

AJIT BORTHAKUR

body2019
JUDGMENT : Ajit Borthakur, J. 1. Heard Mr. R. Dubey, learned counsel for the petitioner and Mr. AC Borbora, learned senior counsel for the sole respondent. 2. By this petition under Section 401 of the Cr.P.C. the petitioner is praying for quashing and setting aside the order, dated 29.3.2019, passed in CR Case No. 46 of 2015 under Sections 177/468/471 of the IPC by the learned Judicial Magistrate, 1st Class, Dibrugarh. The aforesaid criminal proceeding has been initiated by the respondent/complainant, who is the Managing Director of M/s. Rongmon Nirman Pvt. Ltd. against the petitioner/ accused. 3. The respondent/complainant filed the aforementioned complaint case being C.R. Case No. 46 of 2015 in the Court of learned Chief Judicial Magistrate, Dibrugarh alleging, inter alia, that the petitioner/accused in connivance with one Smti Reena Mech, Circle Officer, Chabua Revenue Circle, Dibrugarh committed fraud by causing issue of a false and absurd land valuation certificate, on 19.06.2013, suppressing the relevant official notification determining the land value, through the said Circle Officer, which led to deprivation of settlement of the Bogibeel-Karenbali Ferry Service in the tender process. The aforementioned ferry service was initially settled in favour of the petitioner/accused, on 04.03.2015. 4. Having made over the case for disposal, the learned Judicial Magistrate, 1st Class, Dibrugarh, after due enquiry under Sections 200/202 Cr.P.C. and consideration of a police report, dated 04.06.2015, by order, dated 15.12.2015, took cognizance of offences, under Sections 177/468/471 of the IPC against the petitioner. Thereafter, at the stage of evidence before charge, the respondent/complainant filed a petition praying for calling some documents relevant to the case from the office of the Deputy Commissioner, Dibrugarh and by the impugned order, dated 29.03.2019, the learned Judicial Magistrate allowed the petition. Being aggrieved, the petitioner/accused has preferred the instant revision. 5. Mr. R. Dubey, learned counsel for the petitioner, submits that while passing the impugned order, dated 29.03.2019, the learned Magistrate wrongly assumed jurisdiction under Section 311 Cr.P.C. inasmuch as the said provision relates to summoning of witness not for calling of documents and as such, the order is beyond its jurisdiction. Mr. Dubey further submits that the learned Magistrate has called the official witnesses of the office of the Deputy Commissioner, Dibrugarh to prove the documents so called for, who are not cited as witness in the complaint petition. According to Mr. Mr. Dubey further submits that the learned Magistrate has called the official witnesses of the office of the Deputy Commissioner, Dibrugarh to prove the documents so called for, who are not cited as witness in the complaint petition. According to Mr. Dubey, the learned Magistrate ought to have considered/exercised the jurisdiction vested in it under Section 91 of the Cr.P.C. a law point, which this Court may clarify and accordingly, set aside the impugned order. 6. Mr. A.C. Borbora, learned Senior counsel for the respondent, submits that the impugned order is a legally well reasoned order inasmuch as the learned Magistrate exercised its discretion on consideration of the facts and circumstances more particularly, the relevancy of the documents in question and after due inquiry and satisfaction for the proper adjudication of the complaint. Mr. Borbora further submits that mere alleged wrong quotation of a provision of law, when the relevant principles of law are applied judiciously, does not render an order invalid which is otherwise valid in law and that the petitioner/accused has failed to show as to how he is prejudiced by the impugned order. Mr. Borbora, therefore, submits that the petition may be dismissed. 7. I have given due consideration to the above arguments advanced by the learned counsel of both sides and perused record. 8. The impugned order, dated 29.3.2019, passed by the learned Magistrate in C.R. Case No. 46 of 2015 is extracted as herein below (Relevant portion): "............Section 311 Cr.P.C. invest wide discretion upon the court to call and examine anyone as a witness if the court is of the opinion that his examination is necessary for the just decision of the case. Now reverting back to the case it appears that the instant complaint petition has been filed alleging that the accused person had prepared and used some documents in a tender for settlement of ferry service. Thus the entire case is based on the documents. The complainant with the complaint petition had submitted the copy of required document number 1 and document number 2 and 3 became the part of the record under section 202 Cr.P.C. This documents are very essential in connection with just decision of the case and without the prove of this documents an appropriate adjudication of the instant case cannot be arrived at. Here I take recourse to the famous case of Zahira Habibulah H. Seikh vs. State of Gujarat, (2004) 4 SCC 158 in para 43 and 44, it has been clearly stated that Section 311 Cr.P.C. confers vast and wide powers on presiding officers of the court to elicit on necessary materials by playing an active role in the evidence collecting process. The object of the section is to enable the court to arrive at the truth, irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for the just and proper disposal of the case and to uphold the truth. Thus, even if the documents were not supplied with the complaint petition the court have ample power to call for any documents or any evidence to arrive at a just decision. Considering the same and the fact that the documents are very necessary for the adjudication of the case the prayer of the petitioner is allowed. The Deputy Commissioner, Dibrugarh is directed to send an authorized person along with document number 1, 2 and 3 as provided in the list of document by the complainant." 9. A perusal of the aforequoted impugned order reveals that keeping in mind the allegation that the petitioner/accused had prepared and used some documents in the tender process for settlement of ferry service, as such, the entire case of the respondent/complainant is based on documents, copy of which were submitted and thus, those documents have become part of the case record, the learned Magistrate, having considered just and proper in this context, directed the Deputy Commissioner, Dibrugarh to send an authorised person along with the documents specified in the order. The respondent/complainant mentioned 3(three) documents in the list of documents, as under: 1. Zonal Land Valuation Report for the year 2014-15 in file No. DRR60/LV/2014, dated 24.10.2014. 2. Land Valuation Certificate passed by the Addl. Deputy Commissioner (R), Dibrugarh, Dist-Dibrutarh in file No. DRR-38/2014/Misc. dated 24.12.2014. 3. Corrigendum No. DRR/38/2014/Misc/17 dated 2.04.2014. 10. It needs to be mentioned that it is a cardinal rule of evidence that the best available evidence should be produced before the Court and Sections 60 and 64 of the Evidence Act are based on this rule so as to enable the Court to ascertain the truth of the complaint in criminal trial. Section 311 Cr.P.C. reads as follows: "311. Section 311 Cr.P.C. reads as follows: "311. Power to summon material witness, or examine person present - Any Court may, at any stage of any inquiry, trial or other proceeding 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." Section 311 Cr.P.C. referred to in the order, contains 2(two) parts, while the first part provides a discretionary power to a criminal Court to summon any person as a witness or to examine any person present in the Court or to recall and re-examine any person, whose evidence has already been recorded and the second part is mandatory in nature, providing an obligation on the Court to take the aforementioned steps, if any new evidence appears to be essential to the just decision of the case. The crux of its application is the necessity for just decision of the case. Section 91 Cr.P.C. reads thus: "91. Summons to produce document or other thing. (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed:- (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891). (3) Nothing in this section shall be deemed:- (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891). (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority." Section 91 Cr.P.C. - Is a general power giving a wide power to the Court to issue summons to produce document or other thing to any person who is in possession or has power over it, except the accused, at any stage of investigation, inquiry or other proceeding, when found to be essential to a just decision of a case. The jurisdiction to order the production of a document or thing includes the right to allow inspection. The power is circumscribed which is to be exercised only where the Court considers that the summoning of such relevant document or things is necessary or desirable in its view for the just decision of the case. 11. The three documents, referred to in the impugned order, which are specifically mentioned above, and copy of which were made available to the learned Court below, are essentially the basis of the whole case of the respondent/complainant, and thus, without the contents of the said documents being proved by the evidence of the persons, who can vouchsafe for the truth of their contents, the complainant's case is certain to fail. Because, by mere filing of a document, its contents are not proved. So original document has to be produced to prove its contents by way of examining the persons concerned, who, in the instant case, is the concerned official of the office of the Deputy Commissioner, Dibrugarh, whom the learned Court summoned along with the relevant documents, mentioned above, in exercise of the power vested in it under Section 311 Cr.P.C. although mention of Section 91 Cr.P.C. was not made. The impugned order does satisfy all the conditions precedent for calling witness along with relevant documents in his possession/dominion over or acquainted with their contents. 12. Considered thus, this Court finds no any illegality or incorrectness in the impugned order passed by the learned Magistrate. 13. Accordingly, the revision stands dismissed. 14. Revision petition is disposed of.