Jammu & Kashmir High Court
Central Bureau Of Investigation vs Anan Sharma And Another on 16 November, 2021
Author: Puneet Gupta
Bench: Puneet Gupta
Supplementary List-2
Sr. No. 96
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on: 16.11.2021
CRM(M) No.667/2019
CrlM No.1567/2019
CrlM No.1591/2019
Central Bureau of Investigation .... Petitioner(s)
Anti Corruption Branch, Jammu
Through:- Ms. Monika Kohli, Advocate.
V/s
Anan Sharma and another .....Respondent(s)
Through:- Mr. Ashok Misra, Advocate.
CORAM : HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
1. The petitioner through the medium of present petition seeks setting aside of order dated 10.08.2019 passed by the Court of learned Chief Judicial Magistrate, Jammu whereby the application filed on behalf of the petitioner herein (CBI) for placing on record the documents relating to PWs-14 & 29 and summoning of Narinder Kumar, Deputy GEQD (expert witness) was rejected.
2. It may be stated at the outset that while arguing the matter before this Court on 24.12.2019 learned counsel appearing for the petitioner-CBI had wished to press only the issue regarding summoning of witness in the present petition and qua production of documents the counsel had submitted that she be permitted to withdraw the application filed under Section 540 Cr.P.C. for production of documents with liberty to file fresh 2 CRM(M) No. 667/2019 petition under relevant provision of law, if any. Though the learned counsels for the parties made submissions with regard to the issue of production of documents also during the course of arguments yet the same need not be decided in the present petition in view of the submission recorded by the court of the learned counsel for the petitioner vide order dated 24.12.2019.
3. The petitioner sought to examine Narinder Kumar, Deputy GEQD as expert witness though his name was not in the list of witnesses as the report authored by the said witness was not filed along with the challan. The application was contested by the respondent-accused. The trial Court dismissed the prayer of the petitioner on the ground that nothing has been brought forward either orally or in writing as to how the witness (expert) is essential for decision of the case and how his evidence is necessary to prove the facts. The application was also dismissed on the ground that the investigator has not named the witness in the array of witnesses in the original charge-sheet and thus, did not find necessary to add new witness in the list of witnesses.
4. Learned counsel appearing for the petitioner has submitted that the document pertaining to the expert witness, namely, Narinder Kumar has already been placed on record and it was only by way of oversight that the name of the said expert could not be mentioned in the charge sheet filed in the matter. The examination of the said witness is essential for the just decision of the case.
3 CRM(M) No. 667/2019
5. Mr. Ashok Misra, learned counsel appearing on behalf of the respondent has argued that the application has been rightly rejected by the trial court. No plausible cause is forthcoming for summoning and recording the statement of the expert witness. Moreover, the same is with a purpose to fulfill the lacuna which has occurred in the prosecution case. The prayer cannot be allowed after such a long time of presentation of the challan.
6. It is evident from Section 540 Cr.P.C as then applicable that the power to summon or examine any person as a witness is vested with the court at any stage of any inquiry, trial or other proceedings under this Code. Any person who is not even cited as a witness can also be summoned to give evidence in the trial by the court is also not disputed as the provisions of the said Section clearly envisage the same. At the same time, it is also important to mention that the person cannot be called as a witness which may be with a purpose to fulfill the lacuna in the case of the party intending to summon such a witness. It is equally significant to note that there can be no fatter otherwise upon the court to summon any person as a witness if it is of the view that the person is required to be summoned as his deposition is essential for the just decision of the case. It is not that the prosecution or the defense is to be benefited by calling such a witness but it is the truth which is intended to be revealed through such a witness. It is not with a purpose to give leverage or advantage to either of the parties to the criminal proceedings. Facts and circumstances of the given case are to ultimately decide the fate of the application filed under Section 540 of the Code.
4 CRM(M) No. 667/2019
7. It is not in dispute that the document upon which the prosecution witness, Narinder Kumar, is to depose is now on the record of the trial court. It is just that his name is not in the list of the prosecution witness as the report qua this witness was not part of the charge sheet when the challan was presented in the court of law. The copy of the charge sheet itself reveals that it is mentioned that GEQD opinion along with question documents specimen writings and signatures with additional list of PWs will be submitted as and when received from GEQD Shimla. The court is of the view that this statement in the charge sheet itself was sufficient reason to allow the application which was formally filed by the prosecution during the course of trial proceedings. The court has gone through the application filed by the prosecution to summon the said witness. The application may not be happily worded qua for summoning the expert witness, however, that should not come in the way of the court to allow the application for calling the witness if the examination of such witness will only help the court in reaching the just conclusion of the case. It is suffice to mention here that the charge sheet has been filed under Section 420 RPC and the charge sheet pertains to cheating allegedly committed by the accused with regard to the matters pertaining to the service station which was allotted by the Oil Company. The statement of the expert witness becomes paramount to unravel the truth in the matter. The court is not convinced with the argument of the learned counsel for the respondent that the purpose of the application will be only to fill the lacuna in the prosecution case though the counsel has relied upon the judgment reported in 2019 (1) 5 CRM(M) No. 667/2019 SLJ (HC) 459 titled Mohammad Yousuf Mir v. Mohammad Abdullah Jan.
8. Learned counsel for the petitioner has cited the Hon'ble Apex Court judgment reported in AIR 2014 SC 2950 titled Mannan Sk & ors. Vs. State of West Bengal & another in support of her case. In this judgment, the Hon'ble Apex court has enunciated the law that 'the power of the court is plenary to summon or even recall any witness at any stage of the court if the court considers it necessary for a just decision' and 'further but cause of justice must not be allowed to suffer because of the oversight of the prosecution'.
9. It is also argued on behalf of the learned counsel for the respondents that the prosecution had moved the application at the belated stage of the trial and therefore, should not be allowed. The court is not in agreement with this submission of the learned counsel. The provisions of Section 540 Cr.P.C do not prescribe any limitation within which the party can invoke the provision during the course of trial. The court can otherwise, as mentioned above, summon the witness if it considers necessary for the just decision of the case.
10. In the light of the above, the court finds sufficient reason to allow the present petition and set aside the order of the trial court to the extent whereby the court refused to summon the said prosecution witness Narinder Kumar. The trial court shall summon the witness Narinder Kumar or the petitioner can bring the witness of its own for recording the statement of the said witness. So far as the order impugned whereby the 6 CRM(M) No. 667/2019 application filed for bringing on record the documents is declined, the petitioner has not pressed for the same. The petitioner can take recourse to law which may be available to the petitioner for filing such application before the trial court in this regard.
11. The learned counsels to appear before the trial court on 21.12.2021.
( Puneet Gupta ) Judge JAMMU 16.11.2021 Pawan Chopra Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No PAWAN CHOPRA 2021.11.17 10:39 I attest to the accuracy and integrity of this document