Karnataka High Court
Mohammed Kaleem vs Abdul Sama Siddiqui & Anr on 21 March, 2019
Author: K.Somashekar
Bench: K. Somashekar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF MARCH 2019
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL PETITION No.200041/2018
Between:
Mohammed Kaleem
S/o Mohammed Yakub
Age: 80 years, Occ: Advocate
R/o 1-5-9/14, IB Road
Raichur
... Petitioner
(By Sri Mahantesh Patil, Advocate)
And:
1. Abdul Samad Siddiqi
S/o Basheer Ahemed
Age: 80 years, Occ: Secretary
New Education Society
R/o Tippu Sultan Road
Raichur-584 101
2. The State of Karnataka
Through Sadar Bazar
Police Station, Raichur
Represented by SPP
High Court of Karnataka
Kalaburagi Bench-585 102
... Respondents
(By Sri Liyaqat Fareed Ustad, Advocate for R1;
Sri Mallikarjun Sahukar, HCGP for R2)
2
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to quash the order dated 18.12.2017 passed
in C.C.No.1466/2010 by JMFC-II, Raichur and
consequently, allow the applications filed under Sections 311
and 242(2) of Cr.P.C.
This petition coming on for Admission, this day, the
Court made the following:
ORDER
This criminal petition is filed under Section 482 of Cr.P.C., seeking for quashment of the order dated 18.12.2017 passed in C.C.No.1466/2010 by JMFC-II, Raichur, in rejecting the applications filed by the prosecution under Sections 311 and 242(2) of Cr.P.C., which are filed seeking to permit the prosecution by recalling PW.3, the complainant for further evidence for the purpose of marking the documents and to permit the prosecution to produce the documents morefully described in the list of documents. 3
2. Factual matrix of the petition are as under:
The petitioner herein being the complainant has filed a private complaint in P.C.No.24/2010 against the accused alleging the offences punishable under Sections 406, 468 and 471 of IPC. The learned Magistrate referred the said complaint under Section 156(3) of Cr.P.C., to the jurisdictional police for investigation and for submitting report. Accordingly, the Investigating Officer conducted the investigation and laid chargesheet against the accused for the offences punishable under Sections 406, 468, 471, 420 and 201 of IPC in C.C.No.1466/2010.
3. I have heard the learned counsel for the petitioner as well as the learned High Court Government Pleader for respondent No.2-State and perused the records of the case.
4
4. Learned counsel for the petitioner during the course of arguments has contended that the prosecution has filed applications under Sections 311 and 242(2) of Cr.P.C., in C.C.No.1466/2010 before the JMFC-II Court, Raichur. The Court below by the impugned order has rejected the said applications without application of mind and without assigning any justifiable reason. The documents sought to be produced by the prosecution are vital documents in establishing forgery and breach of trust committed by respondent No.1 herein. Therefore, the impugned order passed by the Court below is arbitrary. On these grounds, the learned counsel for the petitioner seeks for intervention with the impugned order passed by the Court below.
The learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Apex Court in the case of Mina Lalita Baruwa vs. State of Orissa 5 and others reported in (2013) 16 SCC 173 wherein it is held that the private person/victim/complainant can also challenge the orders passed by the courts on the applications filed by the prosecution in order to prevent miscarriage of justice.
The learned counsel submits that the said judgment is squarely applicable to the case on hand as the petitioner being the complainant has filed this petition challenging the impugned order passed by the Court below on the applications filed by the prosecution.
5. Per contra, the learned High Court Government Pleader for respondent No.2-State submitted that the trial Court ought not to have dismissed the applications filed under Sections 311 and 242(2) of Cr.P.C., seeking to permit the prosecution by recalling PW.3, the complainant for further 6 evidence for the purpose of marking the documents and to permit the prosecution to produce the documents morefully described in the list of documents. The documents sought to be produced are vital documents in establishing forgery and breach of trust committed by respondent No.1 herein. Therefore, the trial Court ought to have considered the applications in the interest of justice to arrive at proper conclusion of the case against the accused.
6. Having regard to the strenuous contentions taken up by the learned counsel for the petitioner and the learned High Court Government Pleader for respondent No.2-State and so also tenor of applications filed under Sections 311 and 242(2) of Cr.P.C., are concerned, the scope and object of Section 311 of Cr.P.C., is required to be considered. Under Section 311 of Cr.P.C., the Court has discretionary power to summon any person as a witness or examine any 7 person in attendance though not summoned as a witness or recall or re-examine any person already examined. The power under Section 311 of Cr.P.C., must be exercised with caution and circumspection and only for strong and valid reasons. Recall of a witness already examined is not a matter of course and discretion given to Court in this regard has to be exercised judicially to prevent failure of justice. Reasons for exercising said power should be spelt out in the order. Delay in filing the application for recalling a witness is one of the important factors which has to be explained in the application. It is relevant to place reliance on the decision of the Hon'ble Apex Court in the case of Ratanlal vs. Prahlad Jat and Others reported in (2017) 9 SCC 340. Paragraphs-18 and 19 of the said judgment reads as under:
18. In Vijay Kumar v. State of U.P., [(2011) 8 SCC 136] this Court while 8 explaining scope and ambit of Section 311 has held as under (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 [CrPC] 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."
19. In Zahira Habibullah Sheikh (5) v. State of Gujarat, [(2006) 3 SCC 374], this Court has considered the concept underlying under Section 311 as under: (SCC p. 392, para 27) 9 "27. The object underlying Section 311 of the Code 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 section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any 10 stage of such proceedings, trial or enquiry. In Section 311 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 whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."
7. In the instant case, the prosecution has filed applications under Sections 311 and 242(2) of Cr.P.C., seeking to permit the prosecution by recalling PW.3, the complainant for further evidence for the purpose of marking the documents and to permit the prosecution to produce the documents morefully described in the list of documents. The said applications came to be rejected. Therefore, it is relevant to refer to the 11 provisions of Section 91 (1) of Cr.P.C., which reads as under:
"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."
8. Therefore, keeping in view the object and scope of Sections 311 and 242(2) of Cr.P.C., so also, scope and 12 object of Section 91 of Cr.P.C., relating to summons to produce documents and the judgment of the Hon'ble Apex Court stated supra, this Court is of the view that the concerned Court has to exercise its power and consider the applications in accordance with law by giving an opportunity to the both the parties.
9. For the aforesaid reasons, this Court is of the opinion that though this petition is filed by the complainant who has filed Private Complaint in P.C.No.24/2010, this petition is required to be considered. Accordingly, I proceed to pass the following:
ORDER The petition filed by the petitioner/complainant under Section 482 of Cr.P.C., is hereby allowed. Consequently, the impugned order dated 18.12.2017 passed by the Court below in C.C.No.1466/2010 rejecting the applications filed under Sections 311 and 242(2) of Cr.P.C., is hereby set aside. The Court below 13 shall consider the said applications after giving opportunity to both the parties. The prosecution is at liberty to invoke even the provision of Section 91 of Cr.P.C., for summoning of the documents in order to establish its case in accordance with law.
SD/-
JUDGE NB*