Delhi District Court
Cbi vs Bhagwan Prasad on 7 December, 2022
IN THE COURT OF SHRI AMIT KUMAR, SPECIAL
JUDGE P.C. ACT (CBI-04), ROUSE AVENUE COURTS,
NEW DELHI
CRL. REVISION NO. 40/2022
CNR No. DLCT11-000758-2022
RC No. 03(A)/2010
PS : CBI/ACB/ND
U/S 420, 471 IPC
CBI
........PETITIONER/REVISIONIST
VERSUS
BHAGWAN PRASAD
S/O SH. RAM PRAVESH MAHTO
R/O VILLAGE MAULNA PUR,
PO & PS SHOBHEY PUR, DISTT. SARAN (BIHAR)
& ALSO AT C-2/115 NAGLI VIHAR EXTN.,
NAJAFGARH, DELHI
........RESPONDENT/ACCUSED
DATE OF INSTITUTION : 01.12.2022
DATE OF ARGUMENTS : 06.12.2022
DATE OF JUDGMENT : 07.12.2022
JUDGMENT:-
1. Vide this order, I shall dispose off this revision petition filed by the revisionist/CBI.
2. The brief facts necessary for disposal of this revision petition are that in the case pending before the Trial Court where charges were framed on 11.09.2013, PE was closed on 10.12.2021, SA was recorded on 18.12.2021, DE was closed on 22.04.2022 and matter was listed for final arguments on 13.05.2022, the prosecution filed an Crl. Revision No. 40/2022 Page 1 of 7 application U/s 311 CrPC read with 91 CrPC on 13.05.2022 for summoning witness Sudarshan Prasad, the then Principal of ITI, Marhaura, Saran, Bihar to prove that accused has forged certain ITI certificates documents D8 and D9 on the basis of which he got job as Assistant Pump Driver in Delhi Jal Board in the year 1994-95 and document D-11 issued by PW Sudarshan Prasad in this regard. The said application was allowed by the Trial Court vide its order dated 21.07.2022 for the reason that witness is essential and important as his deposition would help the court in arriving at just decision of the instant case and also said that the accused cannot be permitted to take advantage due to laxity on the part of prosecution. The order, however, was with the rider that in case the witness is unable to appear, for any reason whatsoever, no further opportunity shall be granted to CBI for examining the witness. On summons, the report came that the witness is medically unfit to come to the court, which resulted in an application of the prosecution U/s 284 CrPC to examine the witness on commission. The Trial Court sought report from the HIO on this application and it was reported that the witness has died. The prosecution thereafter filed another application to examine the present Principal of ITI, Marhaura, Saran, Bihar namely Sh. Deepak Kumar alongwith the original record to prove its documents D- 8,D-9 and D-11 as the previous cited witness Sh. Sudarshan Prasad, the then Principal of ITI, Marhaura, Saran, Bihar, had died. This application was dismissed by the Trial Court vide impugned order dated 19.11.2022 on the ground that the application seems to be gap filling Crl. Revision No. 40/2022 Page 2 of 7 exercise left open during the investigation and the prosecution cannot be permitted to fill gap lacuna in its case, more so when Deepak Kumar was never cited as a witness.
3. This order has been challenged by CBI on the ground that the Trial Court failed to appreciate that it had already allowed the application of the prosecution to examine PW Sudarshan Prasad vide its order dated 21.07.2022 on the ground that the witness is essential and important for just decision of the case. If the witness had died in the meantime the same is no fault of the prosecution and the prosecution should be given an opportunity to prove that accused forged the documents, to get job in Delhi Jal Board which is very essential for just decision of this case and it is not a case where prosecution is trying to fill lacunas in the case. The cited witness deceased Sudarshan Prasad could not be examined because of his death and it is essential to prove that the documents on the basis of which the accused got job with Delhi Jal Board are forged and fabricated and therefore, the present Principal of the concerned ITI Mr. Deepak Kumar should be examined. It was also submitted that this revision is maintainable. The same is not disputed by respondent.
4. Ld. PP in support of his submissions has relied upon the judgments of Hon'ble Supreme Court passed in Varsha Garg Vs. State of Madhya Pradesh & Ors., 2022 Livelaw (SC) 662, Mannan S.K. & Ors. Vs. State of West Bengal & Anr., 2014 Crl. Law Journal 4072 and Rajender Prasad Vs. Narcotic Cell, Delhi, 1999 Crl. Law Journal 3529.
Crl. Revision No. 40/2022 Page 3 of 75. Ld. counsel for the respondent /accused on the other hand has argued that deceased PW Sudarshan Prasad was never cited as a witness in the original charge sheet and to fill lacunas in its case, the prosecution added his name lately. The application for summoning Sudarshan Prasad was filed after much delay when the case was listed for final arguments. This is a gap filling exercise and prosecution cannot be permitted to fill the lacunas in its case. There is no provision permitting prosecution to file second list of witnesses as was done in this case. The impugned order does not suffer from any infirmity and the revision is devoid of merit should be dismissed.
6. I have heard the submissions and have perused the record and the case law relied upon.
7. Admittedly, the Trial Court vide its earlier order dated 21.07.2022 found that deceased PW Sudarshan Prasad, the then Principal of ITI, Marhaura, Saran, Bihar is essential and important witness whose deposition would help the court in arriving at just decision of the case. The Trial Court also observed that accused cannot be permitted to take advantage of the laxity on the part of prosecution and permitted the prosecution to summon and examine PW Sudarsahn Prasad to prove documents D8, D9 and D11, which would have shown that D-8 and D-9 were never issued by ITI Marhaura Saran, Bihar in favour of accused. Though this order was with a rider that if the witness does not appear, no further opportunity shall be given to the prosecution but this fact cannot be ignored that the witness could not be examined because of his death, which is beyond the control of anyone including prosecution. On Crl. Revision No. 40/2022 Page 4 of 7 the one hand, the Trial Court found that the examination of PW Late Sudarshan Prasad is essential and important and summoned the witness on 21.07.2022 but on the other hand, did not permit prosecution to prove the record through the present Principal of ITI, Marhaura, Saran, Bihar namely Deepak Kumar only for the reason that it is a gap filling exercise as Deepak Kumar was never cited as a witness. It is beyond comprehension of any person/body that a cited witness will die during trial before deposition and CBI could not have included the name of Deepak Kumar until and unless it came to its knowledge that the cited witness PW Sudarshan Prasad had expired. It is settled law that Court can exercise its power in summoning any witness, which it considers necessary for the just decision of the case. The powers U/s 311 of CrPC read with 91 CrPC are to be exercised depending upon the facts of the case and the court has to consider whether the examination of the witness is essential or not. The Hon'ble Supreme Court in the judgment titled as Varsha Garg Vs. State of M.P. & Ors. (supra) in para 32 and 33 has held as under:
"The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering the truth as an aid in the realization of justice is manifest.
Section 91 CrPC empowers inter alia any Court to issue summons to a person in whose possession Crl. Revision No. 40/2022 Page 5 of 7 or power a document or thing is believed to be, where it considers the production of the said document or thing necessary or desirable for the purpose of any investigation, inquiry,trial or other proceeding under the CrPC."
8. A perusal of the Trial Court record shows that charge sheet in this case was filed on 26.04.2010 and in the list of witnesses, the name of the witness late Sudarshan Prasad was not there but subsequently, CBI filed another list of witnesses on 12.07.2010 where the name of witness Sudarshan Prasad was there at Serial No. 11 and the contention of Ld. Counsel for the accused that the name of Sudarshan Prasad was added lately is not correct. His name was there in the list of witnesses since July, 2010 and cannot be said to be added lately. Other wise also, the court has powers to summon any witness and record at any stage of proceeding, if it is essential for just decision of case. As far as the relevance of the witness is concerned, the same has already been mentioned by the Ld. Trial Court in its order dated 21.07.2022. If the witness has died, the prosecution should be given an opportunity to replace the witness and prove the record through a new witness and the present Principal of the said ITI, Marhaura, Saran, Bihar is the essential witness to prove the record for just decision of the case.
9. In facts, the revision petition is allowed and the impugned order dated 19.11.2022 is set aside. The Trial Court is directed to summon, as per its court diary, the witness Deepak Kumar, the present Principal of ITI, Marhaura, Saran, Bihar or any other witness in case Deepak Kumar is not available for any reason like his transfer, illness etc. Crl. Revision No. 40/2022 Page 6 of 7 alongwith the original records, who can prove documents D-8, D-9 and D-11.
10. With this order, the revision petition stands disposed off.
11. A copy of this order be sent to the Trial Court with Trial Court Record.
12. Revision File be consigned to Record Room.
Digitally
signed by
AMIT AMIT KUMAR
Date:
KUMAR 2022.12.07
ANNOUNCED IN THE OPEN COURT 11:21:48
+0530
TODAY i.e. on 07.12.2022
(AMIT KUMAR)
SPECIAL JUDGE, PC ACT,
CBI-04, ROUSE AVENUE COURTS,
NEW DELHI
Crl. Revision No. 40/2022 Page 7 of 7