Delhi District Court
Shri Brij Mohan Arora vs State Nct Of Delhi on 23 November, 2012
IN THE COURT OF MRS. SUNITA GUPTA:
DISTRICT & SESSIONS JUDGE: DELHI
CR No. 91/2012
Unique ID No. 0240IR0441332012
Shri Brij Mohan Arora
S/o. Late Shri Roshan Lal Arora,
R/o. C-5A/221, 2nd Floor,
Janakpuri,
New Delhi.
.......Revisionist/Accused
Versus
State NCT of Delhi. .....Respondent
Date of institution of revision : 18.09.2012
Date on which final arguments were heard: 23.11.2012
Date of pronouncement of order :23.11.2012.
O R D E R :-
Feeling aggrieved by the order dated 13th August, 2012 passed by Ms. Anchal, ld. Metropolitan Magistrate, Delhi, the present revision has been filed under Section 397 of Code of Criminal Procedure, 1973.
2. Notice of the revision petition was given to the respondent and trial court record was summoned.
3. I have heard Shri Devender Vohra, Advocate for the Revisionist, Shri Ramesh Kumar, Addl. Public Prosecutor and have perused the records.
4. It was submitted by Counsel for the revisionist that FIR No. 35 of PS Rajender Nagar was registered in the year 1996.
(CR No.91/12) (Page 1 of 6) Only four prosecution witnesses were examined. Neither Investigating Officer nor the Doctor was examined and ultimately the prosecution evidence was closed by ld. Metropolitan Magistrate on 25.11.2009. Application moved by the complainant and the State under Section 311 Cr.P.C. was dismissed. Despite that when the Investigating Officer appeared, ld. Metropolitan Magistrate vide impugned order allowed the prosecution to examine him as prosecution witness. It was submitted that this tentamounts to review of the earlier order passed by ld. Metropolitan Magistrate which is not permissible in view of the judgment passed by Hon'ble Supreme Court in Adalat Prasad Vs. Rooplal Jindal & others JT 2004(7) SC 243. As such, it was submitted that the impugned order be set aside.
5. Per contra, it was submitted by ld. Addl. PP for the State that under Section 311 Cr.P.C., the Court has ample powers to examine any witness. Since, the witness/Investigating Officer was present on the relevant date, as such ld. Metropolitan Magistrate while exercising her powers under Section 311 Cr.P.C. permitted the prosecution to examine the Investigating Officer of the case, who is a material witness. Therefore, the impugned order does not suffer from any infirmity. As such, Revision petition is liable to be dismissed.
6. I have given my considerable thoughts to the respective submissions of ld. Counsel for the parties and have gone through the records carefully.
(CR No.91/12) (Page 2 of 6)
7. As regards, the powers of the ld. Metropolitan Magistrate under Section 311 CrPC for examination of any witness whose evidence appears to be essential to the just decision of the case, same is undisputed. However, the question for consideration is whether in the instant case, there was any occasion for the ld. Metropolitan Magistrate to exercise this power under Section 311 Cr.P.C. inasmuch as , the record reveals that FIR pertains to the year 1996. Ample opportunities were granted to the prosecution to lead its evidence. Vide order dated 25.11.2009, the prosecution evidence was closed inasmuch as prosecution failed to examine any witness. Thereafter, statement of accused was recorded and defence evidence was also recorded. The matter was listed for final arguments and part arguments were also heard. Thereafter, an application under Section 311 Cr.P.C. was moved by State for granting opportunity to the prosecution to lead further evidence. Vide order dated 22.09.2011, the application was dismissed. Matter was again adjourned for final arguments. On 04.02.2012 again an application under Section 311 Cr.P.C. was moved by the prosecution for examining SI Jai Bhagwan and Dr. Vinod Kapoor. On the same day, the application was again dismissed. Both these orders were challenged before the Sessions Court. However, since there was no stay of the proceedings, as such the matter was being adjourned for final arguments from time to time. On 18.04.2012 concerned Presiding Officer was on leave and before the Link Metropolitan Magistrate submission (CR No.91/12) (Page 3 of 6) was made by the ld. Prosecutor that both the applications under Section 311 Cr.P.C. were dismissed but the Investigating officer should be called for his explanation as to why he did not appear in the Court. As such, while observing that once the application under Section 311 Cr.P.C. has been dismissed, the same cannot be re-opened, the matter was listed for final arguments but a report was called from SHO/ACP regarding non-appearance of the Investigating Officer of the case. On 13.08.2012, the Investigating Officer appeared in the Court and submitted his explanation. At that juncture, a request was made by ld. APP for the State that in case the Investigating Officer was not allowed to be examined, material prejudice will be caused to the prosecution. This prayer was opposed by the accused on the ground that two applications under Section 311 Cr.P.C. made on behalf of the prosecution have already been dismissed vide orders dated 22.09.2011 and 04.02.2012. Not only this, a revision filed by the complainant Shri Amar has also been dismissed. Despite noting all these facts, ld. Metropolitan Magistrate allowed the prayer and directed examination of SI Jai Bhagwan on the ground that under Section 311 CR.P.C. , Court has power to examine any witness if his evidence is essential for just decision of the case. Investigating Officer not only attended the first DD but also investigated the case finally and submitted the charge sheet.
8. At the outset, it may be mentioned that once two applications under Section 311 Cr.P.C. were dismissed and (CR No.91/12) (Page 4 of 6) even when the link Metropolitan Magistrate had directed a report to be called from SHO/ACP regarding non-appearance of the Investigating Officer, it was made clear that once application under Section 311 Cr.P.C. was dismissed, the same cannot be re-opened. The report was only called in order to get an explanation for non-appearance of the Investigating Officer. In Adalat Prasad's case (supra), Hon'ble Supreme Court has observed that the subordinate criminal Court do not possess any power of review or inherent power. Moreover, having noted the fact that revision against the dismissal order dated 22.09.2011 and 04.02.2012 were challenged by filing a revision and the revision was also dismissed, therefore, even otherwise judicial propriety demanded that the matter should not have been opened by the ld. Metropolitan Magistrate by allowing the prayer of the prosecution. Ld. Metropolitan Magistrate has over-reached the orders passed by ld. Addl. Sessions Judge, which is absolutely against the judicial discipline. The power vested in the Court under Section 311 Cr.P.C. has to be exercised, keeping in view of the facts and circumstances of the case. Prosecution was aware of the fact that SI Jai Bhagwan is a material witness, who not only attended the first DD but also investigated the case and submitted the charge sheet despite that since 1996, no serious efforts were made by them to examine this witness. All these aspects were kept in mind while dismissing two applications moved by the State as well as complainant by the predecessor Courts and the attempt made by (CR No.91/12) (Page 5 of 6) the prosecution also failed before the Revisional Court. While ignoring all these facts that ld. Metropolitan Magistrate did not have the power to review and she could not have allowed the prayer after dismissal of the revision petition, exercise of this power under Section 311 Cr.P.C. was absolutely unwarranted. That being so, the impugned order is set aside. Revision petition is allowed.
9. Copy of the order be sent to the Trial Court while returning the records.
Revision file be consigned to record room.
Announced in open court ( SUNITA GUPTA ) on 23.11.2012. District & Sessions Judge:Delhi (CR No.91/12) (Page 6 of 6)