Allahabad High Court
M/S Parsadi Lal Tulsiram Cold Storage ... vs State Of U.P. And 2 Others on 19 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 53 Case :- APPLICATION U/S 482 No. - 16831 of 2022 Applicant :- M/S Parsadi Lal Tulsiram Cold Storage Agra And Another Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Sanjay Kumar Dubey Counsel for Opposite Party :- G.A. Hon'ble Umesh Chandra Sharma,J.
1. Heard Sri Sanjay Kumar Dubey, learned counsel for the applicants, Sri Pankaj Kumar Tripathi, learned Additional Government Advocate, learned counsel for opposite party no.2 and perused the record.
2. This application under Section 482 CrPC has been filed for quashing the order dated 26.04.2022 passed by the Additional Sessions Judge/Special Judge (Electricity Act), Court No.2, Hathras passed in ST No.109 of 2006 (H.S. Agrawal Vs. M/S Parsadi Lal and others), under Section 135 Electricity Act, 2003, Police Station Chandpa, District Hathras by which Application No.218(D) under Section 311 CrPC moved by the accused persons was rejected.
3. In brief, facts of the case in brief are that opposite party no.2 filed a complaint under Section 135 of the Electricity Act registered as Complaint Case No.109 of 2006 (Shri H.S. Agrawal Vs. M/S Parsadi Lal and others) against the complainant firm and its director regarding electricity theft by tampering the electric meter in which after completion of formalities, trial began, after completion of prosecution evidence, statement of the accused persons were recorded on 07.03.2013 under Section 311 CrPC, evidence of DW-1, DW-2 and DW-3 were recorded in defence and trial court provided opportunity to the prosecution for their cross-examinations.
4. The case of the complainant was that the alleged meter taken from the premises of applicant no.1, was sent to M/s Duke Ornex, Hyderabad and the examiner has not been examined as witness, during the statement of PW-4, Ramesh Chandra, the witness admitted that the report of Duke Ornex, Hyderabad has not been received, but the learned counsel for the complainant stated in his argument that the report of M/S Duke Ornext, Hyderabad was produced in the Court and the examiner of the meter is the necessary witness and he must be examined in the court to ascertain the truth.
5. On the above grounds, the aforesaid application under Section 311 CrPC was moved for calling M/S Duke Ornex, Hyderabad for recording its evidence in respect of report, but the trial court rejected the application recording perverse findings stating therein that it is the duty of the prosecution to set up their case beyond reasonable doubts and in the present case, the dispute with regard to the report of seal received or not, is the case of prosecution. There is dispute with regard to theft of electricity by tampering electric meter and in such circumstances, the evidence of M/s Duke Ornex, Hyderabad becomes essential for the just decision of the case. The order is absolutely illegal, arbitrary and against the provisions of law and has been passed without applying the judicial mind, hence the impugned order be quashed.
6. The relevant documents relating to the case have been filed as Annexures to the counter affidavit filed on behalf of opposite party nos.2 and 3 stating therein that M/S Parsadi Lal Tulsiram Cold Storage had taken electricity connection of 11 K.V. from the U.P. Power Corporation Ltd. On a sudden check by the team of power corporation on 18.11.2004, it was found that the cold storage was functioning and on suspicion all the seals of cubical meter were sent to the M/S Duke Ornex, Hyderabad for its examination on 20.11.2004. After receiving the report of said meter, it was found that the reading of meter was made lesser by the opposite party through remote and as such bill for payment has been sent on 27.09.2005 for Rs.56,79,572/-. The applicants were summoned, trial started, statement of the accused persons under Section 311 CrPC were recorded and the applicants examined three witnesses in defence. After a long gap of six years from the recording of statements under Section 313 CrPC, and at the verge of conclusion of trial, the applicants moved an application under Section 311 CrPC on 27.04.2019. This application was moved after closing of the defence evidence on 13.03.2013 only to delay the trial. The application was rejected by the trial court on 26.04.2022 in which there is no illegality at all. Hence, the application is not maintainable and is liable to be quashed.
7. From the perusal of the para-6 of the impugned complaint, it is very much clear that the Executive Engineer, Hathras had sent the alleged tampered sealed meter to M/S Duke Ornex, Hyderabad for checking and after due checking, M/S Duke Ornex Hyderabad sent the report by letter no.2320 on 20.11.2004 which has also been clarified through its letter that the firm had stolen electricity by setting up sub-circuit in the said meter and running the meter high and low through remote. PW-4, Ramesh Chandra deposed that he has read over the report of the M/S Duke Ornex, Hyderabad and this is the basis of complaint.
8. It is not known to this Court as to whether M/S Duke Ornex, Hyderabad is a government laboratory or private, however, if a report has been obtained under Section 292 or under Section 293 CrPC, such report, being public document, would be admissible in evidence and would be accepted automatically and there would not be any need to examine the scientist who examined the material and prepared the report on behalf of the complainant except on the request of the defence but if any examination report has been obtained from any private agency, such report would be treated to be a private document.
9. In case of report of a private laboratory, it would be a private document in view of Section 75 of the Indian Evidence Act, 1872 and in that case, there would be need of examination of the Scientist who examined the subject-matter and submitted the report.
10. In view of the above discussion, this Court is of the view that since the report was obtained from a private agency i.e. M/S Duke Ornex, Hyderabad, hence it was the duty of the prosecution to prove such report in due course.
11. From the perusal of the impugned order, it does not disclose that whether the report of M/S Duke Ornex, Hyderabad is on record of the lower court or not. Since the alleged report is the basis of the concerned Criminal Complaint, hence it was duty of the learned trial court to order the prosecution to produce the same as in absence of that, there was no prima facie evidence to prosecute the applicants. Before passing the impugned order, it was duty of the lower court to ascertain as to whether the report of M/S Duke Ornex, Hyderabad is on record or not, but he simply based his conclusion on the evidence of PW-4, Ramesh Chandra without examining deeply and properly and concluded that the burden of proof is upon the complainant and rejected the application moved by the applicants.
12. In this case, if the defence evidence had been closed on 13.03.2013, why the concerned complaint could not be decided earlier, is also a matter of concern.
13. It would be proper to reproduce Section 311 CrPC which is as under:-
"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."
14. Under Section 311 CrPC, for the ends of justice and just decision of the case, the Court may entertain and allow the application at any stage before the pronouncement of judgement. The second part of Section 311 CrPC is imperative and binding upon the Court. Therefore, if the report of M/S Duke Ornex, Hyderabad is not on record, it was also duty of the concerned trial court to direct the prosecution to file the same as in a criminal case a judge cannot be a silent spectator or referee and he has to take active part during the trial. He should order for production of document or the oral evidence either of the parties to enable the court for just, appropriate, full and final adjudication of the case. Merely saying that it is the duty of the prosecution to prove the case beyond reasonable doubt, is not sufficient for the trial court to commit an omission. If the view of the trial judge is so, a question arises as to why this criminal complaint was not rejected on the date of institution for the absence of report and evidence regarding tampering with the seals of the concerned meter.
15. In V.N. Patil Vs. Niranjan Kumar and others, (2021) 3 SCC 661, the Hon'ble Apex Court has held principles regarding Section 311 CrPC which are as under:-
"14. The object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion".
15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240 : (SCC p. 141, para 17) "17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."
16. This principle has been further reiterated in Mannan Shaikh v. State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547 and thereafter in Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 : (2017) 3 SCC (Cri) 729 and Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839 . The relevant paragraphs of Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839 are as under: Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839, SCC p. 331, paras 10-11) "10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.
11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law."
17. The aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 Cr.P.C has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice."
16. In the aforesaid case, the appeal was allowed by the Hon'ble Apex Court and the order of High Court was set aside and order of the trial court regarding summoning of the witnesses and production of document was restored.
17. On the basis of above discussion, this Court is of the view that the impugned order is not in accordance with law and it is nothing but avoidance of duty by the trial court, hence the application deserves to be allowed.
18. The present application under Section 482 CrPC is allowed and the impugned order dated 26.04.2022 passed by the trial judge is hereby set aside.
19. The trial judge is directed to first ascertain that the alleged report of M/S Duke Ornex , Hyderabad regarding tampering of seal of the impugned meter is on record or not and if it is on record whether the same has been proved in due course of law by the complainant or not and if it is on record, the learned trial court shall provide an opportunity to summon the concerned Scientist by whom the alleged report had been prepared. In absence of such report, the trial court would also think and act as to whether in absence of the basis of the complaint whether the present criminal complaint was liable to be instituted, the applicants were liable to be summoned and charged and would pass appropriate order/judgment in accordance with law.
Order Date :- 19.4.2023 Shahroz/Pravesh Mishra (Umesh Chandra Sharma,J.)