Punjab-Haryana High Court
Rajiv Garg Son Of Prem Chand Garg vs State Of Punjab on 3 February, 2012
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
Crl. Misc. No.M-31810 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No.M-31810 of 2010 (O&M)
Date of decision: 03.02.2012
Rajiv Garg son of Prem Chand Garg ......Petitioner(s)
Versus
State of Punjab ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Ashok Singla, Advocate and Mr. Ravish Bansal, Advocate
for the petitioner(s).
Mr. Param Preet Singh Paul, DAG, Punjab.
Rakesh Kumar Garg, J.(Oral)
By way of this petition filed under Section 482 Cr.P.C, the petitioner is seeking to quash the order dated 23.8.2010 passed by the Judicial Magistrate 1st Class, Bathinda whereby an application under Section 311 Cr.P.C moved by the respondent-State has been allowed.
As per the averments made in this petition, FIR No.897 dated 16.11.2008 under Sections 451/323/506 IPC was registered against the petitioner on the basis of a complaint moved by Shivani Garg, the wife of the petitioner. The relevant part of the FIR reads thus:
"It is submitted that my husband Rajiv Garg today again came to my house and gave me beatings and caught me from throat. At that time my handicapped mother was at home. My father and brother had gone to the shop. Suddenly, my father came home and he asked Rajiv Garg as to what is the matter, then he Crl. Misc. No.M-31810 of 2010 2 raised hand on my old father aged 62 years and went away from there abusing and saying that we have many links and we will see you on which entire locality gathered and saw. My father saw that two persons were standing on turning point of the street. I think their intentions were not good. Earlier also he had tried to kill me at night. I have already informed police about that. Copy is annexed. I fear that Rajiv and his family members can kidnap me and my son through some high level person and kill us because reside local."
The trial in the aforesaid case is in progress. During the pendency of the trial, the prosecution moved an application under Section 311 Cr.P.C stating that the occurrence was not only witnessed by the mother and father of the complainant but by other independent witnesses also and accordingly their version will give true picture before the Court for coming to the right conclusion. The aforesaid application was allowed by the Judicial Magistrate 1st Class vide impugned order dated 23.8.2010. The relevant part of the impugned order reads thus:
"Present case has been registered on the basis of application dated 16.11.2008 moved by complainant Shivani Garg wherein she has mentioned that occurrence was witnessed by her father and mother. She has further added that on hearing the noise, entire residents of the locality have also gathered there and the accused fled away from the spot. No doubt the complainant has not named either of the witness as disclosed in her application, but their presence at the Crl. Misc. No.M-31810 of 2010 3 time of alleged occurrence can also be ruled out merely on this score, at the present stage. It was bounden duty of the investigating officer to join said residents of the locality who have come on the spot but he has not performed his duty. In such circumstances, this Court cannot leave the fate of the case in the hands of investigating agency who has failed to perform its duty. It has been rightly pointed out by Ld. Additional Public Prosecutor that only witness cited by investigating officer are mother and father of the complainant who are closely related to her, but at the same time they cannot be said that there are interested witnesses. However, in such circumstance ground reality cannot be ignored that persons who are closely related to the complainant are interested in giving a version favourable to the complainant, especially in matrimonial cases. By examining the above referred residents of the locality, this Court would be able to reach at the definite conclusion that whether the accused have visited the house of complainant and any such occurrence has taken place or not.
As per law the witnesses to be examined by the prosecution are to be examined by investigating officer and their statements are to be recorded u/s 161 of Criminal Procedure Code, copies of which are to be supplied to the accused so as to prepare his defence. No doubt by calling these witnesses, this right of the Crl. Misc. No.M-31810 of 2010 4 accused is going to be effected, but even then the accused would be having sufficient opportunity to test the veracity of these witnesses by cross examining them. Present application cannot be declined merely on this technical ground as it would result in giving the fate of the case in the hands of the investigating agency. The examination of these witnesses would not amount to giving favour to the prosecution but would result in reaching at right conclusion as by bringing out material contradictions, the defence would be able to substantiate it defence plea and discard the prosecution version.
In view of the aforesaid discussion, this Court is of the view that the testimonies of these witnesses as disclosed in the application is quite relevant with regard to present dispute. Their examination would throw light on the facts of the case. Accordingly the application stands allowed.
Pws mentioned in the application be summoned for 12.1.2011."
Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that the trial Court has erred at law in allowing the application filed under Section 311 Cr.P.C as the evidence of the persons who were never named at any earlier stage of the investigation or the trial and who were not cited as prosecution witnesses in the charge- sheet and further were not examined during the investigation of the case, cannot said to be relevant at all since the prosecution case is not based on Crl. Misc. No.M-31810 of 2010 5 any evidence of said person. Thus, the exercise of jurisdiction by the trial Court was arbitrary while allowing the application under Section 311 Cr.P.C without any evidence worth the name of the file and observing that the presence of the witnesses sought to be produced at the time of occurrence cannot be ruled out.
I have heard learned counsel for the petitioner and have perused the impugned order and other relevant documents with the help of the counsel for the petitioner.
Admittedly, the complainant in her complaint has specifically mentioned that the entire locality had gathered and seen the occurrence. Not only this, learned counsel for the petitioner could not dispute the fact that in the statements made before the police under Section 161 Cr.P.C Shivani Garg complainant, Darshana Devi, mother of the complainant and Gian Chand, father of the complainant, had specifically stated that at the time of occurrence many people have gathered there. The observations of the trial Court to the effect that presence of the witnesses sought to be produced at the time of occurrence cannot be ruled out.
It may also be noticed that the copies of the statements recorded under Section 161 of the Code of Criminal Procedure are supplied to the accused. Moreover, the accused-petitioner would be having sufficient opportunity to test the veracity of these witnesses by cross examining them. Examination of these witnesses would not amount to filling up the lacunae of the prosecution but would result in reaching at the right conclusion.
Thus, there is no merit in this petition.
Dismissed.
February 03, 2012 (RAKESH KUMAR GARG)
ps JUDGE
Crl. Misc. No.M-31810 of 2010 6