Delhi District Court
Criminal Revision No.95/15 vs The State on 3 November, 2015
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS, DELHI
Criminal Revision No.95/15
Jai Bhagwan .........Petitioner
Vs.
The State ........Respondent
File received on assignment on :28.10.2015
Argument heard on :03.11.2015
Order announced on :03.11.2015
ORDER :
1. This is a revision petition under Section 397/401 Cr. P. C. against the order dated 03.10.2015 passed by Ld. MM3 (North/West), Rohini Courts, Delhi whereby application under Section 311 Cr.P.C. filed by the State was allowed.
2. Briefly stating, the facts relevant for the disposal of the present revision petition are that complainantKishan Lal Batra made a complaint to the Police on which present FIR was lodged. It was alleged by the complainant that in April, 1999 he became friendly with petitioner and one Sanjeev Chopra. He agreed to start a business with them. In April, 1999 they went to Nepal. However, they were threatened to be arrested by the police on the allegations of seizure of one quintal smack from their car. For settling the matter with the police, the complainant made a telephonic call to his wife and told her to make an Criminal Revision No. 95/15 Page 1 of 3 Jai Bhagwan Vs. The State.
arrangement of Rs.20 lakhs. His wife made the said arrangement. After investigation the chargesheet was filed in the Court.
3. I have heard Sh. B. B. Sharma, Ld. Counsel for the petitioner and Ms. Nimmi Sisodiya, Ld. Addl. PP for the State. The Ld. Counsel for the petitioner has contended that the trial court ought not to have allowed the application for summoning the wife of the complainant as prosecution witness. According to him, the prosecution cannot be allowed to fillup the lacuna in the prosecution case at a belated stage. In support of his contention, he has relied upon judgmentSurender Choudhary Vs. State, 2006 Crl. L.J 4573.
4. On the other hand, Ld. Addl. PP for the State has contended that there is no infirmity in the order passed by the trial court.
5. I have gone through the trial court record. Though in the complaint, the complainant has alleged that his wife made arrangement of Rs.20 lakhs. However, during the investigation she was not examined by the police. Neither her statement under Section 161 Cr. P. C. was recorded nor she was cited as a prosecution witness. PW2 was partly examined in the Court on 06.11.2003. His examination in chief was deferred at the request of Ld. APP on that day on the ground that PW2 was resiling from his earlier statement and he wanted to crossexamine him after going through the file on next date. PW2 could not be Criminal Revision No. 95/15 Page 2 of 3 Jai Bhagwan Vs. The State.
examined further in the Court as he expired during the trial. In the application, the State has sought the examination of wife of PW2 as prosecution witness as she was not inadvertently cited as a witness. It is the settled law that power under Section 311 Cr.P.C. cannot be exercised to fill up the lacuna in the case of the prosecution. This power cannot be exercised in routine or cavalier manner. For taking this view, I am supported with the judgmentSurender Choudhary (Supra). As per the contents of the FIR, wife of PW2 only handed over an amount of Rs.20 lakhs to the accused on the instructions of her husband. She cannot be said to be a material witness in this case that her examination is necessary for the just decision of the case. There is no explanation from the side of the prosecution as to why the wife of PW2 was not examined as a prosecution witness during investigation. The judgment Surender Choudhary (Supra) squarely covers the case in hand.
10. In these circumstances and for the above said reasons, the present revision petition is allowed. The order dated 03.10.2015 passed by the trial court is setaside. Trial Court record be sent back with a copy of the order and revision file be consigned to Record Room.
Announced today (Praveen Kumar) in open court on 03.11.2015. Special Judge (PC Act), CBIIII, Rohini Courts, Delhi.
Criminal Revision No. 95/15 Page 3 of 3 Jai Bhagwan Vs. The State.