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2023 DIGILAW 101 (RAJ)

Manoj Kumar @ Leelu v. State of Rajasthan

2023-01-09

ANOOP KUMAR DHAND

body2023
ORDER 1. Instant petition has been preferred by the petitioner against the impugned order dated 05.11.2022 passed by the Senior Civil Judge and Additional Chief Judicial Magistrate No.2, Behror, District Alwar in Criminal Case No.196/2020 by which application filed by the learned Public Prosecutor under Section 311 Cr.P.C. has been allowed. 2. Learned counsel for the petitioner submits that the petitioner is facing trial for the offences under Section 419, 420, 467, 468, 471 and 120B IPC before the trial Court since last nine years. Counsel submits that when the matter reached at the stage of final arguments, learned Public Prosecutor submitted an application under Section 311 Cr.P.C. for summoning PW-18 Nihal Singh. However, the said application was allowed by the trial Court and the witness was summoned vide order dated 15.02.2021. 3. Counsel submits that subsequently one more application under Section 311 Cr.P.C. was submitted for summoning the witnesses Narendra Kumar, Dr. Sandesh Agarwal, Rajesh Trivedi and Jagdish Prasad along with relevant documents. Counsel submits that the said application has been allowed by the trial Court vide impugned order dated 05.11.2022. Counsel submits that the trial Court has committed an error in allowing the said application at this belated stage of the trial. Hence, interference of this Court is warranted. 4. Learned Public Prosecutor opposed the prayer made by the counsel for the petitioner and submitted that the summoning of the witnesses and documents are material for just decision of the case. 5. Heard learned counsel for the parties and perused the material available on record. 6. Hon'ble Supreme Court in the case of Manju Devi v. State of Rajasthan reported in AIR 2019 SC 1976 has held in para 15 as under:- '15. The scope and object of the provision 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. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. 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 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. 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 CrPC 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 "anyCourt", "at any stage', or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.' 7. Hon'ble Supreme Court in the matter of Natasha Singh V. CBI (State) reported in 2013 AIR SCW 3554 has held in para 9 as under:- 'Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right.' 8. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right.' 8. This fact is not in dispute that the petitioner is facing trial for the offences under Sections 419, 420, 467, 468, 471 and 120-B IPC. This fact is also not in dispute that the matter reached at the stage of final arguments but summoning of these witnesses is essential for just adjudication of the case. It is well settled proposition of law that that fair trial is the main object of criminal procedure. Summoning of these witnesses would not in any way cause any prejudice to the petitioner because he will get an opportunity to cross-examine them. 9. In view of the submissions made herein above, the impugned order dated 05.11.2022 passed by Senior Civil Judge and Additional Chief Judicial Magistrate No.2, Behror, District Alwar does not suffer any infirmity. The trial Court does not commit any error in passing the aforesaid order. 10. With the aforesaid, instant petition as well as the stay application stands dismissed.