Vijay Kumar vs State Of U.P. & Anr

Vijay Kumar ... Appellant

Versus

State of U.P. and another ...Respondents

J U D G M E N T

J.M. PANCHAL, J.

Leave granted.

2. This appeal, by grant of special leave, is directed

against judgment dated May 10, 2010, rendered by

learned Single Judge of High Court of Judicature at

Allahabad in Criminal Revision No. 1895 of 2010,

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by which the order dated April 23, 2010, passed by

learned Special Judge, Bareilly below Application

No. 103 Kha in Special Case No. 2 of 2003 refusing

to summon Smt. Ruchi Saxena, staying in U.S.A.,

as a court witness, is set aside and the learned

Special Judge, Bareilly is directed to summon and

examine Smt. Ruchi Saxena as court witness under

Section 311 of the Code of Criminal Procedure,

1973.

3. From the record of the case it is evident that Smt.

Ruchi Saxena, resident of village Aonla, District

Bareilly, U.P., is owner of an agricultural piece of

land. She is settled in U.S.A. Her property is being

looked after by the appellant Mr. Vijay Kumar, who

is her father. To avoid encroachment on the land

Smt. Ruchi Saxena started constructing boundary

wall on the agricultural land belonging to her.

However, construction of wall was objected to, by

the Nagar Palika, Aonla on the ground that Nagar

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Palika is the owner of the said land. Therefore, Smt.

Ruchi Saxena filed a suit No. 443 of 1999 in the

Court of learned Civil Judge praying for permanent

prohibitory injunction to restrain the Nagar Palika,

Aonla and its servants, agents, etc. from putting up

any obstruction in construction of wall to be carried

out on the property in question. The learned Civil

Judge, before whom the suit was pending, by order

dated September 24, 1999, granted an interim order

directing the Nagar Palika not to interfere with the

possession of Smt. Ruchi Saxena of her agricultural

land and not to obstruct construction of boundary

wall. It may be stated that the Nagar Palika had

filed an application on September 23, 1999 under

Order VII Rule 11, Civil Procedure Code, to reject

the plaint, as according to it, the plaint was not

disclosing any cause of action. However, the said

application was rejected by the learned Judge on

September 23, 1999.

4 4. Feeling aggrieved by the order of injunction, Nagar

Palika filed miscellaneous appeal under Order 43

Rule 1 CPC as well as a civil revision application

under Section 115 of the Civil Procedure Code

against order rejecting application filed under Order

VII Rule 11 of the Civil Procedure Code before the

High Court. During the pendency of the appeal and

the revision, the respondent No. 2, i.e. Tajammul

Hussain became Chairman of Nagar Palika in the

year 2001. At that time, one Mr. Shamim Ahmad

was Executive Officer of the Nagar Palika. After

filing of suit Smt. Ruchi Saxena has gone to U.S.A.

and presently she is residing there. However, the

case instituted by her is being supervised and

looked after by the appellant Mr. Vijay Kumar, who

is her father.

5. The case of the prosecution is that the respondent

No. 2 herein and the Executive Officer Mr. Shamim

Ahmed demanded a sum of Rs.2 lacs as bribe from

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the appellant to settle the matter. Therefore, on

December 5, 2001, the appellant lodged a complaint

before S.P. (Vigilance), Bareilly in respect of the

same, pursuant to which a trap was arranged. On

December 7, 2001 the respondent No. 2 and

Shamim Ahmed were arrested while receiving an

amount of Rs.50,000/- as part payment of total

bribe amount of Rs.2 lacs. On April 24, 2002, the

miscellaneous appeal, filed by the Nagar Palika

against the order granting interim injunction, was

dismissed by the appellate court, and thereafter, the

appellant has constructed boundary wall over the

property in question.

6. After success of the trap, further investigation was

carried out and on January 4, 2003 charge-sheet

was submitted against the two accused persons,

namely, the respondent No. 2 and Shamim Ahmed,

who was then Executive Officer of the Nagar Palika,

for alleged commission of offences punishable under

6 Sections 7, 13(2) read with Section 13(1)(d) of the

Prevention of Corruption Act, 1988. The

prosecution also submitted a list of witnesses. The

list did not indicate the name of Smt. Ruchi Saxena

as one of the witnesses to be examined in the case

because she was neither examined during the

investigation of the complaint lodged by the

appellant nor has any concern with the criminal

case.

7. On December 16, 2006 an application dated

February 26, 2004 was moved on behalf of Smt.

Ruchi Saxena in the suit filed by her before the trial

court seeking permission to withdraw the suit with

liberty to file fresh suit in case there was fresh

cause of action. The said application was allowed

and the record shows that the learned counsel for

Nagar Palika was also present at the time when the

said order was passed.

7 8. After framing of necessary charges against the two

accused the trial of the case was conducted before

the learned Special Judge, Bareilly in Special Case

No. 2 of 2003. During the trial the prosecution

examined witnesses. They were cross-examined on

behalf of the accused. On March 18, 2010 the

prosecution submitted certified copies of the orders

passed by the competent court and the High Court

in respect of civil litigation. The learned Special

Judge, by an order dated March 22, 2010, allowed

the papers to be admitted in evidence, by awarding

cost of Rs.500/- to each of the accused and closed

the evidence on behalf of the prosecution.

Thereafter, the case was fixed for April 2, 2010 for

statements of the accused to be recorded under

Section 313 of the Code of Criminal Procedure and

for defence evidence, if any.

9. On April 2, 2010, three separate applications were

filed by the accused. One application No. 103 Kha

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was filed by accused Tajammul Hussain requesting

the court to summon Smt. Ruchi Saxena as a court

witness. Second application being No. 104 Kha was

filed to recall the present appellant Vijay Kumar,

PW-8 Anoop Kumar, PW-10 Lekh Pal Lala Ram and

PW-11 Investigating Officer. Third application being

No. 105 Kha was moved by the accused Shamim

Ahmed to recall the appellant. On April 15, 2010,

objections were filed on behalf of the prosecution to

the three applications submitted by the accused.

So far as application praying to summon Smt.

Ruchi Saxena and examine her as a court witness

was concerned, it was stated on behalf of the

prosecution that the application was filed to delay

the trial because the accused were fully aware of the

fact that Smt. Ruchi Saxena was residing in

America as a citizen of USA and it was difficult for

her to appear as a witness. It was also pointed out

by the prosecution that Smt. Ruchi Saxena had

nothing to do with this case and neither she was

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examined under Section 161 of the Code of Criminal

Procedure nor her name had been listed as one of

the prosecution witnesses. What was maintained

by the prosecution was that the application was

filed with mala fide intention and accused had failed

to indicate in the application as to what was the

intention of their questioning Smt. Ruchi Saxena

especially when no questions and/or suggestions

were put to any of the witnesses examined by the

prosecution with reference to her.

10. The learned Special Judge, by order dated April 23,

2010, dismissed all the three applications.

Therefore, feeling aggrieved, the respondent No. 2

filed a revision petition being Criminal Revision No.

1895 of 2010 before the High Court challenging the

order by which his request to summon and examine

Smt. Ruchi Saxena as a court witness was rejected.

10 11. The High Court has allowed the revision petition by

judgment dated May 10, 2010 giving rise to the

instant appeal.

12. This Court has heard the learned counsel for the

parties and considered the documents forming part

of the appeal.

13. Section 311 of the Code of Criminal Procedure reads

as under: -

"311. Power to summon material

witness, or examine person present. - Any

Court may, at any stage of any inquiry, trial or

other proceeding under this Code, summon

any person as a witness, or examine any

person in attendance, though not summoned

as a witness, or recall and re-examine any

person already examined; and the Court shall

summon and examine or recall and re-examine

any such person if his evidence appears to it to

be essential to the just decision of the case."

This Section consists of two parts, viz., (1) giving

discretion to the court to examine the witness at any

stage; and (2) the mandatory portion which compells a

court to examine a witness if his evidence appears to be

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essential to the just decision of the case. The Section

enables and in certain circumstances, imposes on the

Court the duty of summoning witnesses who would have

been otherwise brought before the Court. This Section

confers a wide discretion on the Court to act as the

exigencies of justice require. The power of the Court

under Section 165 of the Evidence Act is complementary

to its power under this Section. These two sections

between them confer jurisdiction on the Court to act in

aid of justice. There is no manner of doubt that the

power under Section 311 of Code of Criminal Procedure

is a vast one. This power can be exercised at any stage of

the trial. Such a power should be exercised provided the

evidence which may be tendered by a witness is germane

to the issue involved, or if proper evidence is not adduced

or relevant material is not brought on record due to any

inadvertence. It hardly needs to be emphasized that

power under Section 311 should be exercised for the just

decision of the case. The wide discretion conferred on

the court to summon a witness must be exercised

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judicially, as wider the power, the greater is the necessity

for application of the judicial mind. Whether to exercise

the power or not would largely depend upon the facts and

circumstances of each case. As is provided in the

Section, power to summon any person as a witness can

be exercised if the court forms an opinion that the

examination of such a witness is essential for just

decision of the case.

14. The record nowhere shows that any complaint was

filed by Smt. Ruchi Saxena against any of the

accused making grievance that they had demanded

any bribe amount from her. The case of the

prosecution is simple that in order to settle the

matter relating to construction of boundaries on the

disputed property, which is being supervised by the

appellant who is father of Smt. Ruchi Saxena, the

respondent No. 2 and another accused had

demanded a sum of Rs.2 lacs as bribe amount from

the appellant as a result of which the appellant had

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filed complaint pursuant to which a trap was laid

and accused were arrested while receiving an

amount of Rs.50,000/- as part payment of the bribe

amount of Rs.2 lacs. As is evident from the facts of

the case after success of the trap, FIR in the case

was lodged by Mr. V.K. Bhardwaj, Inspector U.P.

Vigilance Establishment. After framing of charge

and commencement of trial several witnesses were

examined by the prosecution, who had been cross-

examined by the accused. Smt. Ruchi Saxena had

nothing to do with the bribe case either as a

complainant or as a witness to the trap arranged by

the police. Her name did not figure as one of the

witnesses to be examined by the prosecution when

charge-sheet was submitted in the court of learned

Special Judge. The High Court without specifying

as to how Smt. Ruchi Saxena is a material witness

or how her evidence is essential for just decision of

the case, has directed the learned Special Judge to

summon Smt. Ruchi Saxena as a court witness

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under Section 311 of the Code of Criminal

Procedure and to examine her. Though Section 311

confers vast discretion upon the court and is

expressed in the widest possible terms, the

discretionary power under the said Section can be

invoked only for the ends of justice. Discretionary

power should be exercised consistently with the

provisions of the Code and the principles of criminal

law. The discretionary power conferred under

Section 311 has to be exercised judicially for

reasons stated by the Court and not arbitrarily or

capriciously. Before directing the learned Special

Judge to examine Smt. Ruchi Saxena as a court

witness, the High Court did not examine the

reasons assigned by the learned Special Judge as to

why it was not necessary to examine her as a court

witness and has given the impugned direction

without assigning any reason. The High Court

failed to consider the case of the prosecution that

the application was submitted by the respondent

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No. 2 only to delay the trial and no case was made

out by the respondent No. 2 as to why direction

should be given to examine Smt. Ruchi Saxena as a

court witness. In a bribe case what is required to

be proved by the prosecution is that there was a

demand of bribe by the accused from the

complainant and that pursuant to the said demand,

bribe amount was accepted by the accused. To

prove this case it was not necessary for the court to

examine Smt. Ruchi Saxena as a court witness.

15. Neither the respondent No. 2 in his application nor

the court in the impugned judgment has specified

the reason as to why and how examination of Smt.

Ruchi Saxena as a court witness is necessary.

16. At this stage, it would be advantageous to refer to

decision of this Court in Sawal Das vs. State of

Bihar AIR 1974 SC 778. In the said case the

appellant, his father and his mother were charged

for murder of appellant's wife. Immediately after

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the wife was pushed inside the room and her cries

of "Bachao Bachao" came from inside the room, her

children were heard crying and uttering words that

their mother was either being killed or had been

killed. But the children were not produced as

witnesses in the trial court. There was some

evidence in the case that the appellant's children

had refrained from revealing any facts against the

appellant or his father or his step-mother when they

were questioned by the relations or by the police.

The argument before this Court was that they

should have been summoned as court witnesses for

examination under Section 540 of the Code of

Criminal Procedure, 1898, which is in pari materia

with same as Section 311 of Code of Criminal

Procedure, 1973. This Court has held that the

court could have rightly decided in such

circumstances not to examine the children under

Section 540 of the Code of Criminal Procedure. If

this is the approach to be made while deciding

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application under Section 311 of the Code of

Criminal Procedure, this Court fails to understand

as to how the evidence of Smt. Ruchi Saxena was

relevant in the instant case and why direction

should be given to examine her as a court witness,

as she was neither present at the time when the

bribe was demanded or even at the time when the

trap was arranged and laid. Without examining the

relevance of evidence, which may be tendered by

Smt. Ruchi Saxena or the necessity of examining

her as a court witness or examining the question of

prejudice if at all which is likely to be caused to the

defence, if she is not examined, the High Court has

directed the learned Special Judge to examine Smt.

Ruchi Saxena as a court witness. There is no

manner of doubt that the power under Section 311

of the Code of Criminal Procedure, 1973 is exercised

arbitrarily and, therefore, the impugned judgment is

liable to be set aside.

18 17. For the foregoing reasons the appeal succeeds. The

impugned order dated May 10, 2010, rendered by

the learned Single Judge of the High Court of

Judicature at Allahabad in Criminal Revision No.

1895 of 2010 directing the learned Special Judge to

examine Smt. Ruchi Saxena as a court witness is

hereby set aside.

18. The appeal accordingly stands disposed of.

.....................................J.

[J.M. Panchal]

.....................................J.

[H.L. Gokhale]

New Delhi;

August 03, 2011.