Madhya Pradesh High Court
Jai Bajrang Associates Thr. Partner ... vs Ramveer Singh on 5 September, 2020
Author: Sheel Nagu
Bench: Sheel Nagu
1 Mcrc.33863.2019
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
JUSTICE SHEEL NAGU
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Misc. Criminal Case No.33863 of 2019
Jai Bajrang Associates:
A partnership concern thr. partner Sonu Rana & Anr.
Vs.
Ramveer Singh & Anr.
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Shri Prashant Sharma, learned counsel for the petitioners.
Shri G.S. Sharma, learned counsel for respondent No.1.
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Whether approved for reporting : Yes
Law laid down: The extent of affording of opportunity to the accused
to defend themselves is wider and mandatory in nature u/S.243 Cr.P.C
in warrant trial whereas it is constricted and discretionary u/S.254
Cr.P.C. in summons Trial.
Significant Paras: 7 to 10
_________________________________________________________
ORDER
(05.09.2020) Learned counsel for the rival parties are heard through video conferencing.
1. Inherent powers of this Court are invoked u/Sec.482 Cr.P.C.
2 Mcrc.33863.2019 assailing the impugned order dated 14.06.2019 passed by the Judicial Magistrate First Class, Gwalior (M.P.) in Criminal Case No.2507/2016 by which an application preferred by the accused/petitioner for production of certain documents and summoning witnesses to prove those documents has been rejected on the ground that the witnesses and the documents sought to be produced are those who/which can be produced by the accused by taking summons from the court by paying the requisite fee, and that the bank documents are irrelevant.
2. Pertinently, this Court by interim order dated 25.09.2019 had restrained the learned Trial Judge from pronouncing the judgment.
3. Learned counsel for the rival parties do not dispute at the bar that certain developments have taken place in the trial during pendency of this case, inasmuch as, that out of the five witnesses sought to be produced by petitioner/accused in support of his defence, two have already been examined. These two witnesses examined as DW-3 and DW-2 are K.N. Pandey (Notary) and Veerendra Rana (one of the two witnesses to the affidavit sworn by accused No.1 indemnifying accused No.2 of loss). Therefore, the remaining three witnesses, namely, Pankaj Sikarwar (Bank Manager), Dharmendra Rana (the other witness to the affidavit sworn by accused No.1) and Hameer Singh Jaat (witness to the execution of bond of indemnification) are yet to be examined by the accused in his defence. It is these three remaining witnesses which form the subject matter of this petition u/S.482 Cr.P.C.
4. Learned counsel for the petitioner while relying upon "Ronald 3 Mcrc.33863.2019 Wood Mathams Vs. State of West Bengal [AIR 1954 SC 455 (Para
10)]" and a Single Bench decision of Delhi High Court "Shyam Manohar Saxena Vs. CBI & Ors. rendered in Criminal Revision No.1169/2018 (Para 26)" submits that the provision of Section 243(2) Cr.P.C. is mandatory in nature and has been engrafted in the Code to achieve the ultimate object of ensuring due and sufficient opportunity to the accused to defend himself by producing documentary and oral evidence of his choice. It is submitted that due to the denial of petitioner's right to produce these remaining witnesses, namely, Pankaj Sikarwar, Dharmendra Rana, Hameer Singh Jaat, the defence of the accused is adversely prejudiced, amounting to denial of fair trial which is concomitant of fundamental right to life u/Art.21 of our Constitution.
5. Learned counsel for respondent No.1/complainant, on the other hand, submits that the petitioner/accused is guilty of adopting dilatory tactics. It is submitted that the trial in question ought to have been concluded within six months but due to repeated adjournments sought by the petitioner and granted by the learned Trial Judge, the trial continues to be pending even after lapse of four years. It is submitted that the application for calling the Bank Manager alongwith record was rightly rejected by assigning reason that the bank records sought to be produced in defence are of no avail since the same are irrelevant in the face of petitioner/accused not denying the factum of stoppage of payment. As regards the other two witnesses i.e. Dharmendra Rana and Hameer Singh, learned counsel for respondent No.1/complainant urges 4 Mcrc.33863.2019 that the trial court has already afforded option to the petitioner to obtain summons from the trial court to produce these two witnesses. However, it is submitted that petitioner/accused has failed to avail this option. Reliance is placed on the decision of Apex Court rendered in "Makwana Mangaldas Tulsidas Vs. State of Gujarat and others [(2020) 4 SCC 695]". On these submissions, dismissal of this petition is sought by learned counsel for respondent/complainant.
6. After hearing learned counsel for the rival parties, since interpretation of Sections 243 and 254 of Cr.P.C. is involved, both these provisions are reproduced below for ready reference and convenience:
243. Evidence for defence: (CHAPTER XIX OF CODE qua WARRANT CASES) (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.
(2) 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 purpose of examination or cross- examination, or the production of any document or other thing, 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 shall be recorded by him in writing:
5 Mcrc.33863.2019 Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.
254. Procedure when not convicted : (CHAPTER XX OF CODE qua SUMMONS CASES) (1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.
(3) The Magistrate may, before summoning any witness on such application require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.
6 Mcrc.33863.2019
7. The entire arguments advanced by learned counsel for the rival parties and surprisingly even the order of learned Trial Judge are founded upon the assumption that provision applicable to the facts and circumstances of the case at hand is Section 243 Cr.P.C. In the considered view of this court, this assumption is fallacious. 7.1 Section 243 Cr.P.C. is part and parcel of Chapter XIX which relates to trial of warrant cases by Magistrates whereas the trial in question is in connection with offence punishable u/Sec.138 Negotiable Instruments Act which attracts maximum punishment of two years' imprisonment, and thus is a summons case/trial stipulated to be conducted under a different chapter i.e. Chapter XX of the Code. 7.2 Though Section 243 relating to warrant case and Section 254 relating to summons case deal with the same issue of procedure adopted by the respective courts for affording opportunity to the accused to defend himself by adducing documentary and/or oral evidence.
7.3 The cardinal difference between the two provisions is that in Section 243, the Trial Judge is obliged to accede to the request of accused for issuance of process to compel attendance of witness or production of any document/other things in support of defence, except in cases where the Trial Judge finds that doing so would cause vexation, delay or failure of justice.
7.4 While under Section 254 Cr.P.C. pertaining to summons cases, the Magistrate is obliged to hear the case and take all such evidence as 7 Mcrc.33863.2019 the accused produces in his defence, after the prosecution evidence is closed. The discretion is vested with the Magistrate that if he thinks fit and if the accused applies, the Magistrate may issue summons to any witness asking him to attend or to produce documents or other things. 7.5 A close scrutiny of the distinguishing features of the said two provisions i.e. Section 243 and 254 reveals that u/Sec.243 it is mandatory (except in cases of vexation, delay & failure of justice) on the part of Magistrate to issue summons for compelling attendance of witnesses in support of defence as sought by the accused. But there is no such compulsion with the Magistrate u/Sec.254. Section 254 (1) makes it mandatory for the Magistrate to proceed to hear the accused and take all such evidence as is produced by the accused. Thus, the all important aspect of Magistrate's obligation to issue summons to witnesses to appear and produce the record as sought by accused, is conspicuously missing in Section 254(1) wherein the only compulsion is to hear the accused and take all such evidence which is produced by the accused. Meaning thereby that evidence oral or documentary, as is produced by the accused without the intervention of the court is to be allowed to be adduced.
7.6 However, to ensure affording of reasonable opportunity to accused to defend himself u/Sec.254(2) the Magistrate is empowered to issue summons to any witness to attend or to produce documents or other things. But this power in the hands of the Magistrate is discretionary with no compulsion to invariably allow the application of 8 Mcrc.33863.2019 the accused to summon witnesses or produce documents. 7.7 The raison de etre behind Sec.243(2) being couched in mandatory language, as against Sec.254 being discretionary, is not far to see. Warrant case relates to trial of offences attracting punishment of imprisonment for more than 2 years. It is trite law that, higher the punishment, stricter is the requirement of following the due and detailed procedure of law to avoid any denial of reasonable opportunity to the accused [See "Sharad Birdhichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622)"]. Since Sec.254 governs the procedure to be followed in summons trial which relate to minor offences attracting punishments of imprisonment not more than two (2) years, the need to follow detailed procedure as prescribed in warrant trial, gets obviated. Therefore, the obligation upon the Magistrate in mandatory terms u/S.243(2) has been understandably watered down to a mere discretion to be exercised judiciously u/S.254 of the Code. 7.8 Section 243(2) leaves only three contingencies, of vexation, delay and defeating of ends of justice, before the Magistrate to refuse request of accused to issue summons for compelling the attendance of witnesses and producing documents u/Sec.243(2). While, on the other hand, the discretion available for allowing or refusing an application for summoning the witnesses or producing documents u/Sec.254(2) is wide enough to be exercised either way without any restriction so long as the power is exercised in a judicious manner without bringing in the element of arbitrariness.
9 Mcrc.33863.2019
8. The trial at hand in which the impugned interlocutory order has been passed is undoubtedly a summons trial and therefore provisions of Section 254 Cr.P.C. would be attracted where discretion available with the Magistrate is very wide and is not circumscribed and restricted by law as it is in warrant cases u/Sec.243(2) Cr.P.C.
9. Testing the factual matrix attending the instant case on the anvil of the provisions of Section 254 Cr.P.C., it is obvious that learned Trial Judge while rejecting the application of the petitioner/accused of summoning of witnesses and producing the documents has assigned reasons. In respect of Bank Manager Pankaj Sikarwar, the reason assigned is that since the factum of stoppage of payment from the bank account of petitioner which led to dishonour of the cheques in question, is not disputed by the rival parties, the requirement of calling the bank manager and the bank documents gets obviated. Whereas in regard to other witnesses i.e. Dharmendra Rana [witness to the affidavit sworn in by accused No.1] and Hameer Singh [witness to execution of bond of indemnity] the Trial Court held that these witnesses can very well be summoned by the petitioner/accused himself without seeking a direction for issuance of summons by the court. 9.1 As such, it appears that the court while declining the prayer of the petitioner for summoning these witnesses and the documents was exercising its wide discretionary jurisdiction conferred upon it u/Sec.254(2) Cr.P.C. Thus, this Court has to test the impugned rejection on the anvil of discretion conferred upon the trial court u/Sec.254(2) of 10 Mcrc.33863.2019 the Code. The only fetter to the said discretion available to the Magistrate is that the discretion needs to be exercised judiciously. Thus, it is to be seen as to whether the reasons assigned for rejecting the application of petitioner fall foul of the concept of reasonableness or not.
9.2. The reason assigned for declining calling of the Bank Manager appears to be justified as the learned counsel for the petitioner has not controverted the factum of instruction of stoppage of payment given by the petitioner to the bank. This reason assigned can very well stand the test of reasonableness, fair play and good conscience. 9.3 As regards the reason assigned in respect of other two witnesses, the same further appears to be just & fair since petitioner/accused has already been afforded opportunity by the Trial Court for summoning these witnesses by depositing the requisite fee and getting the summons issued from the court. However, the petitioner has failed to avail this opportunity.
10. The judicial verdicts, relied upon by learned counsel for the petitioner, relate to the rights of accused to defend himself in warrant cases but not in summons cases. Since instant case pertains to summons case and the provisions applicable to both type of cases are distinct, not only in their application but also the object they seek to achieve, the said judicial verdicts are of no avail to the petitioner.
11. In view of above discussion, the discretion exercised by the Trial Court is just and proper and does not transgress any of the rights of the 11 Mcrc.33863.2019 accused available to him u/Sec.254(1) & (2) Cr.P.C.
12. In the conspectus of above analysis, this Court has no manner of doubt that the impugned decision of learned Trial Judge is within the jurisdictional parameters of Section 254 Cr.P.C. and there is no occasion of failure of justice and therefore, there is no need for exercise of inherent powers u/Sec.482 of the Code.
13. Consequently, present petition stands dismissed, sans cost.
(Sheel Nagu) Judge pd PAWAN Digitally signed by PAWAN DHARKAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF DHARK MADHYA PRADESH BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, 2.5.4.20=345b3604d572ed9dd14 AR 92fe82dc3b1eef67eff2cb59f3ac9 7e920ac264de7828, cn=PAWAN DHARKAR Date: 2020.09.05 13:24:02 +05'30'