Madhya Pradesh High Court
Smt. Renu Sharma vs Atul Bhargav on 7 September, 2017
MCRC-18509-2016
(SMT. RENU SHARMA Vs ATUL BHARGAV)
07-09-2017
Shri Sankalp Kochar, learned counsel for the petitioner.
Shri Mujahid Ali Khan, learned counsel for respondent No.1.
Shri S.K. Shrivastava, learned Panel Lawyer for respondent No.2/State.
This petition under Section 482 of Cr.P.C. has been filed to assail the order dated 15/09/2016 passed by the First ASJ, Chhindwara in Criminal Revision No.2500078/2016, wherein the order dated 03/08/2016 passed by JMFC, Chhindwara in Criminal Case No.1206/2010 has been affirmed.
Brief facts of the case requisite for disposal of this petition are that, the petitioner is facing trial under Sections 427, 457, 323, 506-I read with Section 34 of IPC. In the complaint case, after the examination of the accused, petitioner filed an application for examining herself and calling Subodh Malviya, Head Constable in- charge of the Cyber Cell in the office of Superintendent of Police, Chhindwara to bring with him the details of Atul Bhargava Mobile No.9826147899 to Mobile No.9425306129, call details of Prashant Mobile No.942469919 and Shiv Saxena Mobile No.9425146706. The said application was disallowed by learned JMFC on 03/08/2016. The same was agitated in Criminal Revision No. 2500078/2016/16 was filed before First ASJ, Chhindwara, wherein the same has been disallowed on 15/09/2016.
Brief facts just necessary for disposal of this petition are that, criminal complaint case has been filed by Atul Bhargava against the petitioner and her mother Kusum Sharma on the ground that there was an agreement between the parties for running the Abhimanyu Hotel and 12 Cottages. The complainant was living in a room in that hotel. The accused No.1 is the wife of the Director of the Abhimanyu Hotel Ltd. and mother of the accused No.1. There was a dispute between them. After the order from the Court, the complainant was running the business of the hotel since 18/06/2007. When the complainant and his wife were sleeping in their room, on 14/02/2010 around the midnight, suddenly the accused persons entered into the room with four other members, who said to be police personnel wearing Khaki dress. The accused persons abusing the complainant by obscene words, damage the furnitures and caused loss about Rs.15,000/-. They also threatened the complainant to vacate the hotel or else they will be dealt with and threatened of his life. At that time, the accused persons assaulted the complainant. The complainant rang up to Prashant and Shiv Saxena and called them. In presence of Prashant and Shiv Saxena also the accused persons uttered obscene words and threatened him of his life. With the intervention of Shiv Saxena and Prashant, the complainant and his wife could be saved. The accused persons also threatened complainant's wife of her life. On lodging complaint at police station, Kundipura, no report was lodged, therefore, a private complaint has been filed.
The petitioner/accused claimed that during the examination of the accused, question No.20 was asked about calling Prashant and Shiv Saxena by the complainant. In her plea in the examination of the accused, the petitioner has stated that her husband is the owner of the Abhimanyu Hotel Ltd. which is run by her. The complainant and other members entered into the hotel and assaulted the petitioner and her mother-in-law and also damaged the properties of the hotel. A civil case is also pending with regard to the dispute. Therefore, false complaint has been initiated by Atul Bhargava.
It is further claimed that in this background, this application for calling the call details was felt necessary and to prove the veracity of the statement of the complainant, the same is required.
It would be appropriate to note that the petitioner's application for examining the petitioner has been allowed by the learned JMFC vide order dated 03/08/2016 under Section 315 of Cr.P.C. Prayer for calling Subodh Malviya, Head Constable with the call details of Atul, Prashant and Shiv Saxena in the intervening night on 14/02/2010 and 15/02/2010 has been prayed.
Learned counsel for the respondent has vehemently opposed the contentions and submits that, earlier Atul, Prashant and Shiv Saxena has been examined by the complainant and no such questions were put to them, therefore, this application has been filed to delay the proceeding and to defeat the ends of justice.
Perused the record.
The full Bench of Hon'ble the Apex Court in the case of Ronald Wood Mathams and others Vs. State of West Bengal reported as AIR 1954 SC 455, has observed that,
(a) Criminal P.C. (1898) S. 257-- Refusal to issue process for examination of witnesses.
"Although the evidence on record may tend to establish a strong case against the accused, he is entitled to rebut and if certain documents would furnish good material for rebutting that case, the Court, by declining to issue process for the examination of the witnesses connected with those documents, would deprive the accused of an opportunity of rebutting it. The accused cannot be convicted without an opportunity being given to him to present his evidence and if it is denied to him, there is no fair trial and conviction cannot stand. It is essential that rules of procedure designed to ensure justice should be scrupulously followed and Courts should be jealous in seeing that there is no breach of them."
In the case of Ashok Dubey Vs. State of M.P. reported as 1980 MPLJ 300, a Division Bench of this Court has observed that the evidence of character, conduct and state of mind is admissible under Sections 8, 14 & 53 of the Evidence Act.
In the case of Nandlal Vs. State of Maharashtra reported as 2007(1) MPLJ 84, it is observed that, in criminal trial request of the accused to summon expert of his choice to rebut the evidence of the experts of the prosecution cannot be turned down merely on the ground that accused have cross-examined them.
The veracity of the statement of the complainant and his witnesses who allegedly reached the spot at the instance of the complainant has to be verified. Hence, the call details may be very important.
If the evidence of any witness appears to the court to be essential for the just decision of the case, it is the duty of the Court to summon and examine him. However, it is to be borne in mind that the Court has been conferred with a wide power on summoning witnesses. The discretion conferred is to be exercised judiciously in favour of the petitioner. As it is the case of the complainant that he called Prashant and Shiv Saxena at the time of quarrel.
A conspectus of authorities referred above would show that the principle is well settled that the exercise of power under Section 311 of Cr.P.C. should be resorted to fulfill the object of finding out the truth or obtaining the proper proof of such fatcs which lead to a just and correct decision of the case. For the purpose of finding out the truth, in order to enable the Court to arrive at a just decision of the case cannot be dubbed as dilatory, vexatious or resulting miscarriage of justice.
The paramount consideration could always be the just decision of the case, therefore, this petition is allowed. The Head Constable, Cyber Cell office of Superintendent of Police, Chhindwara may be called with the call details of the complainant, Atul, Prashant and Shiv Saxena for the intervening night of 14/02/2010 and 15/02/2010 at the expenses of the petitioner.
The petitioner is, therefore, disposed of.
(SUSHIL KUMAR PALO) JUDGE RS