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Showing contexts for: SONEPAT in Vijay Pal vs State Of Haryana & Ors on 27 May, 2020Matching Fragments
The petitioner has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') for setting aside order dated 01.07.2015 passed by learned Chief Judicial Magistrate First Class, Sonepat in Criminal Case No.583/1 of 2007 titled 'State Vs. Vijay Pal and others' arising out of FIR No.184 dated 24.07.2007 registered under Sections 419, 420, 468 and 471 read with Section 120-B of the Indian Penal Code, 1860 (for short 'the I.P.C.') at Police Station City Sonepat.
3. While the case was pending for defence evidence and arguments, learned Chief Judicial Magistrate, Sonepat observed that at the time of recording of his statement under Section 161 of the Cr.P.C., M.K. Goyal, Branch Manager, State Bank of Patiala, Main Branch, Sonepat had handed over photostat copies of the documents produced by the 18 accused persons to the bank at the time of availing loan and had undertaken that he will produce the original record in the Court at the time of his testimony. The testimony of complainant-M.K. Goyal was recorded on 23.09.2013 but he did not produce original record in the Court. The Investigating Officer Satbir Singh (retired Inspector) tendered photostat copies of the documents during his testimony but admitted during his cross-examination that he had not seen 3 of 46 the original documents. Learned Chief Judicial Magistrate, Sonepat further observed that the accused persons had executed mortgage deed in favour of the complainant-Bank but the prosecution did not cite the concerned Registry Clerk of the office of Sub-Registrar, Sonepat as witness to prove the mortgage deeds. Learned Chief Judicial Magistrate, Sonepat considered re- examination of PW1 M.K. Goyal to be necessary to prove the original record of documents produced by the 18 accused and examination of the concerned Registry Clerk of the office of Sub-Registrar, Sonepat to be essential for just decision of the case. Learned Chief Judicial Magistrate, Sonepat accordingly ordered summoning of PW1 M.K. Goyal, Branch Manager for his re-examination to prove the original record of the documents produced by the accused persons to the bank at the time of availing loan and concerned Registry Clerk, office of Sub-Registrar, Sonepat for production of the record of mortgage deeds photostat copies of which were placed on record as Mark- H, Mark-M, Mark-Q, Mark-Y, Mark-A3, Mark-A-8 Mark-A12, Mark-A15, Mark-A20, Mark-A25 and Mark-A29.
5. Notice of the petition was given to the respondents. The petition has been contested by respondent No.1. However, none appeared for respondent No.2 despite due service.
6. In its reply respondent No.1 has submitted that there is no illegality in passing of the impugned order dated 01.07.2015 by learned Chief Judicial Magistrate, Sonepat and PW-1 M.K. Goyal and the Registry Clerk of the office of Sub-Registrar, Sonepat have been rightly summoned. The petitioner did not file any revision petition against the impugned order before learned Sessions Judge, Sonepat before filing the present petition. Therefore, the petition may be dismissed.
52. The Court can not play into the hands of the Investigating Officer or the Public Prosecutor. Recalling of PW-1 M.K. Goyal Branch Manager, State Bank of Patiala, Main Branch Sonepat now posted as Chief 41 of 46 Manager, State Bank of Patiala, Head Office Patiala along with original record as well as attested copies for his re-examination in order to prove the original record of the documents produced by the 18 accused persons at the time of availing of loan and summoning of the concerned Registry Clerk of the Office of Sub-Registrar, Sonepat for production of the record of the mortgaged deeds photostat copy of which were placed on record as Mark-H, Mark-M, Mark-Q, Mark-Y, Mark-A3, Mark-A12, Mark-A15, Mark-A20, Mark-A25 and Mark-A29 is essential for just decision of the case and can not be said to amount to filling up of the lacuna. Under Part-II of Section 311 of the Cr.P.C., learned Chief Judicial Magistrate is under statutory duty to summon and examine or recall and re-examine witnesses if their evidence appears to him to be essential to the just decision of the case. The power under Section 311 of the Cr.P.C. can be exercised at any stage of the case before passing of the judgment and is, therefore, in the very nature of things meant to be exercised even after closing of the evidence of the prosecution or the accused. For the purpose of exercise of the power under Part-II of Section 311 of the Cr.P.C. it will be wholly immaterial as to whether the evidence of the prosecution or the accused was closed by the prosecution or the accused or by the Court by its order and the mere fact that evidence of the prosecution or the accused was closed by Court order will not bar the Court from exercising its power under Section 311 Part-II of the Cr.P.C. In this legal perspective, impugned order dated 01.07.2015 passed by learned Chief Judicial Magistrate, Sonepat under Section 311 of the Cr.P.C. cannot be said to be by way of review of the orders dated 06.03.2014 closing the prosecution evidence and order dated 06.08.2014 dismissing application filed by the prosecution under Section 311 of the Cr.P.C. for summoning Sachin 42 of 46 Kumar Goyal and Indraj, Bank Managers and is not liable to be set aside on that ground. Learned Chief Judicial Magistrate being under statutory obligation under Section 311 Part-II of the Cr.P.C. has rightly ordered to summon M.K. Goyal concerned Bank Manager and the Registry Clerk of the office of Sub-Registrar, Sonepat vide impugned order. In the facts and circumstances of the case the impugned order is also not liable to set aside on the ground that the same has been passed at the belated stage of the case reopening prosecution evidence after prolonged trial agonizing the accused for more than 8 years. No prejudice will be caused to the accused as PW1 M.K.Goyal has been summoned by the Court to produce the original documents allegedly executed by the accused at the time of taking of loan by them photostat copies of which have been already produced and the concerned Registry Clerk, Office of Sub-Registrar, Sonepat has been summoned to produce the record of mortgage deeds which were allegedly got registered by the accused in the Office of Sub-Registrar, Sonepat and no new case is to be made out by their examination. Further, the accused can cross examine the witnesses and produce defence evidence in rebuttal.