Allahabad High Court
Raman Kirpal vs State Of U.P. And Ors. on 6 November, 2006
Equivalent citations: 2007(1)AWC259
Author: Alok K. Singh
Bench: Alok K. Singh
JUDGMENT Alok K. Singh, J.
1. This application under Section 482, Cr. P.C. has been filed for quashing the orders dated 9.5.2005 and 30.6.2006, passed by Special C.J.M., Customs, Lucknow in complaint case No. 801 of 2002 under Sections 500 and 501, I.P.C. Anant Kumar Singh v. Raman Kirpal and Ors., relating to Police Station Hazaratganj, district Lucknow. It has been further prayed that an order be passed directing the Court below to summon the witnesses under Section 311. Cr. P.C. or the petitioner be himself given an opportunity to produce his defence witnesses.
2. Briefly stated the facts giving rise to this application are that an application was moved for summoning three defence witnesses namely M/s. Shiela Reddy, Sri Sanjeev Rastogi and Vijay Simha. This application was disposed of on 9.5.2005 with a direction to the accused persons to produce the defence witnesses themselves, if they so desire and for that purpose several dates were also fixed for defence evidence. But no evidence was produced in defence. This order was also not challenged till the filing of the instant application under Section 482, Cr. P.C. on 21.8.2006. When no evidence was produced even after giving several dates, the defence evidence was closed. Then on 13.6.2005 an application under Section 315, Cr. P.C. was moved for permitting one of the accused namely the petitioner to be examined as defence witness which was allowed and his evidence was recorded. Thereafter another application dated 19.5.2006 (Annexure-4) was moved under Section 311, Cr. P.C. for summoning one witness namely Sri Sanjeev Rastogi, Photographer which was rejected vide order dated 30.6.2006 (Annexure-1). Feeling aggrieved by both the aforesaid orders the instant application under Section 482, Cr. P.C. has been moved to invoke the inherent powers of this Court.
3. Heard Sri R.P. Mishra, learned Counsel for the: petitioner, learned A.G.A. and Sri I.B. Singh, learned Counsel for the opposite party No. 2.
4. As far as the order dated 9.5.2005 is concerned, it was partially in favour of the petitioner and if he was aggrieved at all he could have challenged it. But indisputably this order was not challenged for about one and half years for the reasons best known to the petitioner. The learned Counsel for the petitioner argued that in view of Section 243(2) of Cr. P.C. if the accused, after he has entered upon his defence applies to the Magistrate to issue any process for compelling the attendance of any witness for the purposes of examination, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of Justice and such ground which shall be recorded by him in writing. The learned Counsel also placed reliance on the following case laws in this regard. Ram Achal Yadav v. State of U. P., Lucknow 1986 LCR 175 and Vinay Mohan alias Mannu and Anr. v. State of U. P. 1986 LCR 53.
5. On the other hand it was argued that in the application dated 9.5.2005 no reason whatsoever was assigned for summoning the three witnesses. Any subject-matter was also not disclosed on which these witnesses were supposed to adduce evidence. The address given of the three witnesses were also in complete. It is further submitted that this application was moved only with a view to delay the proceedings but even then the court below afforded sufficient opportunity to produce witnesses of defence for about one and half yeaRs. But neither any defence witness was produced nor this order was challenged.
6. in respect of subsequent order dated 30.6.2006, the learned Counsel for the petitioner argued that the prayer was made for summoning only one witness namely Sri Sanjeev Rastogi, Photographer, under Section 311, Cr. P.C. but it was rejected without assigning sufficient reason. The learned Counsel for the other side vehemently argued that the provisions under Section 311, Cr. P.C. are discretionary and the learned lower court after taking in to consideration totality of the circumstances has given out detailed reasons for rejection of the application. During the course of arguments the learned Counsel for opposite party No. 2 vehemently maintained that the instant application has been moved only with a view to delay the proceedings which are pending for the last about nine yeaRs. in this regard he also submitted a list of dates which is reproduced hereinbelow:
List of Dates Sl. No. Dates Event details
1. 29.7.1997 Complaint filed.
2. 25.9.1997 Cognizance taken.
3. 22.6.1999 Last of the 5 accused appeared.
4. 17.7.1999 Date fixed for statement of the accused.
5. 31.8.1999 Applicant movedby accused toconsolidate allthree cases forhaving samesubject-matter.
6. 27.1.2001 Casesconsolidated
7. 23.4.2001 Application filedby accused tostop theproceeding due topendency of arevision againstthe order of theSession Judge ona separatecomplaint of the. State Government about the samepublication.
8. 28.11.2001 Above applicationrejected.
9. 16.3.2002 Revision filedagainst the aboveorder rejected.
10. 6.5.2002 Statement of P.W.1 begun.
11. 4.1.2003 Application ofaccused to keepevidence in threefiles separately rejected.
12. 6.1.2003 Fresh applicationfiled by theaccused to stopthe proceedingdue to pendencyof a revisionagainst the orderof the Session Judge on aseparatecomplaint of theState Governmentabout the samepublication againrejected.
13. 8.1.2003 Cross-examination ofP.W. 1 started.
14. 26.4.2003 Pros. evidence closed.
15. 17.5.2003 Date fixed for Cr.P.C. 313 statement.
16. 16.8.2003 Yet another application filed ay accused to stop the proceeding due to Dendency of a revision against he order of the Session Judge on a separate complaint of the State Government about the same publication.
17. 1.10.2004 The same rejected.
18. 15.10.2004 Statement under Section 313, Cr.P.C. recorded.
19. 4.11.2004 Date fixed for defence evidence. No evidence given.
20. 4.6.2005 Evidence closed when no evidence was produced on giving
7 dates (opportunities).
21. 13.6.2005 Application filed by accused under Section 315, Cr.P.C.
for permitting him to be examined.
22. 27.6.2005 Above application allowed.
23. 12.7.2005 Examination of accused began.
24. 5.5.2006 Cross-examination closed.
7. in respect of order dated 9.5.2005, I find substance in the arguments advanced on behalf of the opposite side that without disclosing the subject-matter on which the three defence witnesses were required to depose, the application was moved wherein even the complete addresses of the witnesses were not given. Nevertheless, the learned lower court accorded permission to the petitioner to examine those witnesses themselves in defence, if they so desire. The learned Counsel for the other side stated at bar that for this purpose as many as 7 dates (opportunities) were given and then only defence evidence was closed. Otherwise also in disputably this order war. not challenged for about one and half yeaRs. It further appears that subsequently the petitioner himself gave up the idea of the examining at least two out of the three witnesses and that is why at the subsequent stage a request was made for examining only one witness, i.e., Sri Sanjeev Rastogi, Photographer under Section 311, Cr. P.C. about which discussion will be made hereinafter. Regarding both the case laws cited on behalf of the petitioner it may be mentioned that in the case of Ram Achal Yadav (supra) according to facts of that case a request of the defence for examining witnesses was allowed and process were issued. But another application for opportunity to produce witnesses was rejected. Therefore, the learned single Judge observed that a reasonable opportunity ought to have been given to the revisionist to substantiate his contention in support of his defence case and if the process was not served, the Court could have taken effective steps as contemplated by law. But in the present case, the facts are different. Similarly, in the case of Vinay Mohan (supra) the learned single Judge of this Court observed that a direction for the defence to obtaindasti summon was not called for and a normal procedure ought to have been adopted for summoning the defence witness. in the instant case, no such direction for dasti summon was issued. Therefore, the petitioner cannot derive any benefit from either of the aforesaid case laws. Thus, in view of the aforesaid discussion there does not appear to be any good ground to quash the order dated 9.5.2005.
8. As regards order dated 30.6.2006, it is noteworthy that after closing of the defence evidence, on the written request of the petitioner, the permission was accorded under Section 315, Cr. P.C. to the petitioner to examine himself as defence witness and he was accordingly examined. It was only after that stage the application dated 19.5.2006 under Section 311, Cr. P.C. was moved which was rejected vide the aforesaid impugned order dated 30.6.2006. The learned lower court gave out the detailed reasons for rejecting this application. It has been observed in this order that the matter is pending between the parties since long and despite affording opportunities no defence witness were examined and therefore the defence was ultimately closed. The Court further observed that similar application for same purpose comes in the category of ?proceedings estoppel' and if it is allowed it will amount to recalling of the earlier order. The learned lower court also noted that it has also not been disclosed as to what fact or circumstance has come in the evidence of accused Raman Kirpal (petitioner) in his examination under Section 315, Cr. P.C. in respect of which, if Sri Sanjeev Rastogi, Photographer is not examined then irretrievable in jury or loss would be caused to the accused. The learned Counsel for the opposite party No. 2 argued that in his cross-examination the petitioner has admitted that during his examination on two dates this witness namely Sri Sanjeev Rastogi, Photographer was present in the Court while presence of proposed witness during evidence of other witness is an abuse of process of court and such witness should not be heard as was observed by this Court in the case of Lal Mani v. B.R. Chaudhary AIR 1934 All 840. From this point of view also the prayer for examination of this particular witness under Section 311, Cr. P.C. is meaningless. There appears ample soundness in these submissions. It appears that for one reason or the other the petitioner wants to protract the proceedings of the case. in the conspectus of the discussion made hereinabove there does not appear to be any Justification for summoning the aforesaid witness under Section 311, Cr. P.C. Sufficient opportunity has already been provided for adducing defence but neither any witness was examined nor any difficulty was brought to the notice of the court below in this regard. Thereafter one of the accused, i.e., the petitioner was examined on his written request under Section 315, Cr. P.C. as defence witness. After reaching that stage there is no justification to fall back and to examine a witness under Section 311, Cr. P.C. for which opportunity had already been given. Therefore, in respect of this impugned order also there does not appear to be any embellishment or any legal infirmity. The inherent powers of this Court under Section 482, Cr. P.C. are to be exercised sparingly and that too in the rarest of rare cases to do real and substantial Justice but not to stifle legitimate prosecution.
9. Finally, therefore, the application under Section 482, Cr. P.C. deserves to be and is accordingly dismissed.