Punjab-Haryana High Court
Manpreet Singh vs State Of Punjab on 13 September, 2012
Author: K.C.Puri
Bench: K.C.Puri
Criminal Revision No.634 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Revision No.634 of 2012
Date of decision 13 .9.2012.
Manpreet Singh
...... Petitioner.
versus
State of Punjab
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Mr. Kanwaljit Singh, Senior Advocate
Mr. Ajaivir Singh, Advocate for the petitioner.
Mr. Vishal Sharma, AAG, Punjab
K.C.PURI, J.
Challenge in this revision petition is order dated 2.2.2012 passed by Shri Sunil Kumar Arora, Additional Sessions Judge, Ludhiana vide which the prosecution was allowed to place on record report of Chemical Examiner, which it could not produce due to inadvertence.
2. Briefly stated the brief facts of the prosecution case are that Sukhwinder Kaur was married to accused Manpreet Singh on 7.5.2006 and sufficient dowry articles were given to her in her marriage. Being husband Manpreet Singh, Bachan Singh being father-in-law and Manjit Kaur being mother-in-law of deceased Sukhwinder Kaur felt dissatisfied and started Criminal Revision No.634 of 2012 2 harassing and maltreating Sukhwinder Kaur with cruelty and further forced her to bring more dowry articles but said Sukhwinder Kaur fed up with the harassment and ultimately committed suicide by consuming some poisonous substance on 30.8.2006. Viscera of the deceased was sent for analysis and the Chemical Examiner observed presence of organ phosphorous compound pesticide in the Viscera of the deceased. The prosecution moved an application under Section 311 of the Cr.P.C., for allowing it to produce the report of Chemical Examiner and the said report is material for the just decision of the case and the prosecution due to inadvertence could not produce the same into the evidence and wrongly closed the same. Hence the impugned application.
3. The petitioner-accused filed reply and contested the said application.
4. The trial Court after hearing learned counsel for the parties allowed the said application and permitted the prosecution to produce on the record report of the Chemical Examiner vide order dated 2.2.2012.
5. The accused-petitioner has preferred the present criminal revision petition for setting aside the said order.
6. The learned counsel for the petitioner has submitted that the report of the Chemical Examiner has been allowed to fill up the lacuna. It is further contended that said report cannot be allowed by invoking the provisions of Section 311 Cr.P.C. From the bare reading of Section 311 Cr.P.C., it is revealed that power has been given to the prosecution to summon material witnesses or to examine a person, the document could not Criminal Revision No.634 of 2012 3 be produced by invoking the provisions of Section 311 Cr.P.C.
7. In support of his contention learned counsel for the petitioner has relied upon the following authorities :-
1. Narinder Singh versus State of Punjab & Ors reported in 2011(5) RCR.(Criminal ) at page 563;
2. Hari Singh versus State of Haryana reported in 2002 (1) CLJ at page 295 ;
3. Rajendera Prasad versus The Narcotic Cell through its Officer in charge, Delhi reported in 1999(3) RCR.
(Criminal ) at page 440 ;
4. Hanuman Ram versus The State of Rajasthan and Ors reported in 2008(4) RCR.(Criminal ) at page 823 ;
8. In order to properly appreciate the contention Section 311 Cr.P.C. is reproduced as under :-
311. Power to summon material witness, or examine person present.
"Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person its a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
9. No doubt, from the bare reading of the Section 311 Cr. P. C., it is revealed that Any court may, at any stage of any inquiry, trial or other proceeding can summon any person as witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine Criminal Revision No.634 of 2012 4 any person already examined. if the evidence of such person appears to be essential to the just decision of the case.
10. From the bare perusal of the said provisions of Section 311 of the Cr.P.C., although the word witness has been mentioned but that section cannot be taken in a limited sphere. The intention of the Legislation is that if a material evidence has not been produced before the Court, in that case, the Court can summon any person or allow the production of any that evidence at any stage of the trial.
11. The report of the Chemical Examiner is admittedly already on record and the same has inadvertently not tendered at the time of closing the evidence. The Rules and Procedure are meant to advance the cause of justice and not thwart it. The report of Chemical Examiner is a material evidence to prove the fact that deceased died due to poisoning. It is consistent case of the prosecution from the very beginning that deceased died due to poisoning. The error on the part of District Attorney cannot be a reason to discard the material evidence. So, in these circumstances, the learned trial Court has rightly allowed the production of report of Chemical Examiner as additional evidence.
12. Otherwise also, counsel for the appellant could not produce a single authority in which the application under Section 311 of the Cr. P. C., is rejected on the ground that only document is sought to be produced and not the evidence. On the contrary Hon'ble the Apex Court in authority P. Chhaganlal Daga vs. M.Sanjay Shaw (2003) 11 Supreme Court Cases 486 upheld the order of trial Court vide which the postal receipt was Criminal Revision No.634 of 2012 5 allowed to be produced by exercising the power under Section 311 Cr.P.C.. That was a case under Section 138 of the Negotiable Instruments Act. After the arguments were concluded and the case was fixed for judgment and the complainant moved to the trial Court for reception of additional evidence under Section 311 Cr.P.C., for producing postal receipt. The said application was accepted by the trial Court. However, the Single Bench of High Court set aside the order of the trial Court allowing the application under Section 311 CrPC, in the shape of producing the postal receipt. Hon'ble the Apex Court in the opening line of the judgment observed as under :-
" After the trial is over, if the petitioner is permitted to produce the postal receipt, that would only prejudice the right of the accused. Further the postal receipt is sought to be produced only to fill up the lacuna or letting in corroboration of the evidence, if any, available regarding this aspect. I consider that the respondent cannot be allowed to adopt such a course." . It is very unfortunate that the High Court by the impugned judgment has interfered with an order passed by a trial Magistrate permitting the complainant to produce a document though at the fag end of the trial. Consequently, the order of the High Court was set aside by the Apex Court and the order of the trail Court was restored.Criminal Revision No.634 of 2012 6
13. So from the bare reading of the said ruling it can be safely inferred that intention of Section 311 Cr.P.C. is not only to allow the examination of the witness but to produce material evidence in the shape of documents also.
14. So far as authority Narinder Singh's case (supra) is distinguishable to the facts of the present case.
In that case, prosecution filed an application for summoning reader of Deputy Superintendent of Police, in order to rebut the evidence produced by the accused. So, under that circumstances it was held by this Court that prosecution cannot be allowed to fill up lacuna in the case. That authority is remotely connected to the facts of the present case.
15. Authority Hari Singh's case (supra) is not helpful to the case of the petitioner. In that case, this Court held that Magistrate is required to use his discretionary power judicially and not arbitrarily. It was further observed in that ruling that since the Magistrate has closed the evidence of the prosecution and as such he cannot review his own order. Therefore, the said authority is distinguishable to the facts of the present case.
16. In authority Rajendera Prasad's case (Supra) the ratio of the judgment is that prosecution cannot be allowed to fill up the lacuna but the Court has to determine whether the evidence sought to be produced under Section 311 Cr.P.C. is essential for the just decision of the case or just to fill up the lacuna.
In the said case, the application for additional evidence under Section 311 Cr.P.C. by summoning the person, already examined, was allowed. The said order was upheld even by the Apex Court. In that ruling it has been Criminal Revision No.634 of 2012 7 held that there is a difference between error and lacuna. So, the said authority rather advanced the case of the prosecution than that of accused- petitioner.
19. Authority Hanuman Ram's case (supra) is remotely connected to the facts of the present case.
In that case, it has been held that a witness called by the Court and the witness gives evidence against the complainant, in that case complainant has the right to cross-examine the said witness under Section 311 Cr. P. C. Court is not empowered to compel either of the prosecution or the defence to examine any particular witness but Court can summon a witness by its own under Section 311 Cr.P.C., if the Court comes to the conclusion that his evidence is essential for the just decision of the case.
20. Learned counsel for the petitioner has further submitted that report of the Chemical Examiner is not per-se admissible. He has further contended that Chemical examiner be summoned to prove the report. However, during the course of arguments, it is not disputed that report has been tendered into evidence and the case is fixed for defence and arguments. So, in these circumstances, the petitioner is at liberty to raise the said point before the trial Court at the time of arguments in the main case. In case the petitioner desires to cross-examine the Chemical Examiner, in that case he may move an application before the trial Court and the trial Court shall decide the said application on merits.
21. With the above said observations, the revision petition is without any merit and the same stands dismissed. Criminal Revision No.634 of 2012 8
22. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI ) JUDGE September 13 , 2012 sv