Madhya Pradesh High Court
Parmanand Gupta vs Smt.Bhagwati Devi on 11 December, 2014
W.P.6457/11 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No. 6457/11
Parmanand Gupta
Vs.
Smt. Bhagwati Devi & Ors.
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Shri Santosh Agrawal, Advocate for the petitioner.
Shri Sunil Jain, Advocate for the respondent No.1.
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ORDER
( 11 / 12 /2014) This petition filed under Article 227 of the Constitution challenges the order dated 14.9.2011 passed by the learned District Judge, Shivpuri in Case No. 6074/11.
2. The respondent No.1/plaintiff filed a suit for declaration and possession. The respondent No.1, mother of petitioner, filed the aforesaid suit. It is alleged that petitioner has manufactured a power of attorney and on the basis of said fake power of attorney, sold some part of property to respondent No.3. The present petitioner/defendant No.1 filed the written statement and challenged the plaintiff's allegations. It is submitted that plaintiff herself executed power of attorney in favour of petitioner. The property was sold on the basis of a genuine and valid power of attorney. It is stated that the suit was filed on the pressure of plaintiff's sons Lalit and Harisharan because they have enmity with the petitioner.
3. In the said civil suit, the Court below framed issues. It is the case of the petitioner that his brothers who are with plaintiff/respondent No.1 lodged a report against the petitioner in police Kotwali, Shivpuri. The report was regarding the same facts, i.e., preparation of forged power of attorney by the petitioner. It is submitted that after investigation and recording of evidence of plaintiff and other witnesses, police found no case against the petitioner and filed the ending report. A copy of ending report, evidence and FIR are filed as Annexure P-5.
4. In the suit, plaintiff's evidence was already recorded.
W.P.6457/11 2Thereafter, by application dated 9.9.2011 (Annexure P-6), the petitioner prayed that under Order 18 Rule 17 read with Section 151 CPC, the plaintiff be recalled and she be permitted to be cross examined. The said prayer was made on the ground that the plaintiff preferred a complaint which was enquired into by the police authorities and allegations of complaint were not found proved. The petitioner obtained these documents lateron and, therefore, she be permitted to cross-examine the plaintiff on the basis of said documents.
5. Shri Santosh Agrawal, learned counsel for the petitioner submits that Court below has erred in rejecting the said application by order dated 14.9.2011 on the ground that the finding of criminal investigation is not binding on the Court and, therefore, the said documents are not sufficient to recall the witness. He submits that even if report of police is not binding on the civil court, the petitioner has a valuable right to cross examine the plaintiff on the basis of the evidence which were recorded by the police authorities in the investigation. This includes the statement of plaintiff recorded by the police authorities. In support of his submissions, he relied on Section 33, 145 & 158 of the Evidence Act.
6. Per contra, Shri Sunil Jain, learned counsel for respondent No.1 submits that under Order 18 Rule 17 CPC, the Court alone can recall the witnesses and it cannot be permitted to be recalled on an application of a litigant. In addition, he submit that there is no error in the finding of the court below.
7. I have heard the learned counsel for the parties and perused the record.
8. I deem it proper to first deal with the objection of Shri Sunil Jain that the Civil Court can recall the witness suomotu but this cannot be done on an application filed by the other side. In my view, the curtains are finally drawn by the Apex Court on this aspect in the case reported in (2011) 11 SCC 275 (K.K. Velusamy Vs. N. Palanisamy). This judgment makes it clear that u/o 18 R.17 CPC, court can recall a witness on an application preferred by a party. The Apex Court opined that power under W.P.6457/11 3 Order 18 Rule 17 CPC cannot be used in a routine manner or on mere asking which can be used when application is found to be bonafide and where the additional evidence, oral or documentary, will assist in rendering justice.
9. The contention of Shri Santosh Agrawal is based on Section 33, 145 and 158 of the Evidence Act. Section 33 reads as under:-
"33. Evidence given by a witness in a judicial proceedings, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, Court considers unreasonable:
Provided--
that the proceeding was between the same parties of their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation: A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. (Emphasis supplied).
10. Shri Agrawal placed heavy reliance on the underlined portion of Section 33 to bolster his submission that before the police authorities, the statement of plaintiff under Section 161 Cr.P.C. must have been recorded. The police must be treated as "person authorized by law to take evidence" as per Section 33. By relying on the explanation of Section 33, it is contended that its scope is very wide which includes the evidence recorded during the police investigation. Putting it differently, Shri Santosh Agrawal submits that any evidence collected by police during the investigation of complaint preferred by the plaintiff amounts to "evidence given by witness" as per Section 33. He further submitted that Section 158 refers Section 33 and once it is clear that the statement/evidence in police investigation is covered under Section 33, Section 158 comes into play. He relied on W.P.6457/11 4 Section 145 of Evidence Act to submit that plaintiff needs to be cross-examined as to previous statement made by him in writing or reduced into writing is relevant for the purpose of establishing the defence of the petitioner.
11. In section 33, the words used are "or before any person authorized by law to take it" for the purpose of proving in the same judicial proceedings or in a subsequent judicial proceeding the truth of the fact etc. The pivotal question is whether the statement recorded by police authorities during investigation is covered under Section 33 of the Evidence Act? In my opinion, the contention of Shri Agrawal is misconceived. In section 33, the words 'judicial proceeding' are used. The investigation by the police authorities cannot be treated as judicial proceeding. In explanation to the said Section on which heavy reliance is placed, the words used are "enquiry shall be deemed to be a proceeding."
12. Section 2(g) of Cr.P.C. defines "enquiry" which reads as under:-
"inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;"
(Empahsis supplied).
Section 2(h) defines investigation which reads as under:-
"investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf;"
13. The law makers in their wisdom have chosen the word "inquiry" in the explanation of Section 33 and not "investigation". Enquiry, as evident from the definition, is conducted under the Code by Magistrate or Court, whereas the investigation is conducted by the police officer or any person (other than a Magistrate). Thus, I am unable to hold that either in Section 33 or in its explanation, the 'enquiry' means 'investigation' by the police authorities. The statement recorded by police authorities during investigation is not covered under Section 33 of the Evidence Act.
14. The matter may be examined from yet another angle. A W.P.6457/11 5 plain reading of Section 33 will make it clear that evidence given by a witness in a judicial proceeding or before any person authorized to take it is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states in its evidence given in earlier judicial proceeding or earlier stage of the same judicial proceeding, but under proviso there are three prerequisites for making the said evidence admissible in subsequent proceeding or later stage of the same proceeding and they are: (i) that the earlier proceeding was between the same parties; (ii) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and (iii) that the questions in issue in both proceedings were substantially the same, and in the absence of any of the three prerequisites aforesaid, Section 33 of the Act of the would not be attracted. (See (1995) 6 SCC 122 (V.M. Mathew Vs. V.S.Sharma & Ors) and (2004) 4 SCC 236 (Sashi Jena and others Vs. Khadal Swain and another). This cannot be doubted that the proposed accused/accused has no right of cross-examination of a witness whose statements were recorded under Section 161 Cr.P.C. Thus, the said statement cannot be treated as an evidence under Section 33 of the Act. The prerequisites aforesaid are not satisfied in this case. As analyzed above, Section 33 is of no help to the petitioner. Resultantly, Section 158 is also not applicable. Section 145 of Evidence Act is also of no help to the petitioner in the facts and circumstances of the case.
15. On the basis of aforesaid analysis, it is clear that the Court below was not powerless in recalling the plaintiff witness under Order 18 Rule 17 CPC. The very reason put forth for seeking recall of witness is not supported by Section 33, 145 and 158 of Evidence Act. Thus, for different reasons, I deem it proper to upheld the order of the Court below.
16. Resultantly, petition is dismissed. No cost.
(Sujoy Paul) Judge W.P.6457/11 6 vv