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Balwant Rai vs Surjit Kaur on 1 March, 2018

Criminal Misc. No. M- 8988 of 2018 (OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

Criminal Misc. No. M- 8988 of 2018 (OM)
Date of decision : March 01, 2018

Balwant Rai …..Petitioner

Versus
Surjit Kaur ….Respondent

CORAM:- HON’BLE MRS. JUSTICE LISA GILL

Present: Mr. Lakhwinder Singh Mann, Advocate
for the petitioner.
***

LISA GILL, J.

The petitioner is aggrieved of order dated 03.02.2018

passed by learned Judicial Magistrate First Class, Shaheed Bhagat

Singh Nagar whereby application under Section 311 Cr.P.C. moved by

the complainant – respondent has been allowed.

Brief facts necessary for adjudication of the case are that

criminal Complaint No. 38/1/16 under Sections 406, 498A, 323, 506,

120B IPC (Annexure P-1) was filed by the respondent against the

petitioner and others. The accused were summoned by the learned trial

Court to face trial. Application (Annexure P-3) was moved by the

respondent – complainant for summoning the concerned clerk of the

office of the Deputy Commissioner and the Senior Superintendent of

Police, Nawanshahr in order to prove application dated 18.02.2015

moved by the complainant, application dated 24.12.2015 submitted by

the complainant before the Senior Superintendent of Police,

Nawanshahr, report of the SHO, Police Station Sadar Nawanshahr

dated 15.01.2016 as well as remarks by the Senior Superintendent of

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Police, Nawanshahr alongwith the compromise and the final report. It

is specifically mentioned in the application under Section 311 Cr.P.C.

that the inquiry report of the said police officials and the DC office are

on the file of the case. This application was opposed by the accused

while specifically contending that this application should not be

allowed at such a belated stage as the complainant had failed to prove

the said documents either in the pre-charge evidence or evidence after

the charge. In reply dated 16.01.2018 (Annexure P-4), it is stated that

the prosecution/complainant had been sleeping over its/her rights

despite countless opportunities. It was, thus, prayed that the application

under Section 311 Cr.P.C. be dismissed.

The learned trial Court vide impugned order dated

03.02.2018 while taking into consideration the facts and circumstances

of the case, observed that there are sufficient reasons to summon the

witnesses as above. Aggrieved therefrom, this petition has been filed.

Learned counsel for the petitioner vehemently argues that

the stage at which this application has been moved is highly belated.

Moreover, no satisfaction has been recorded by the learned trial Court

to the extent that examination of the said witnesses is necessary for the

just and proper adjudication of the case. It is submitted that recording

of satisfaction by the learned trial Court to the effect that the

documents are necessary for just and proper adjudication of the case is

necessary and in the absence thereof the order is illegal and deserves to

be set aside. Learned counsel relies upon the judgments of the Hon’ble

Supreme Court in Vijay Kumar versus State of U.P. and another 2011

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(3) SCC (Cri) 371; Rajaram Prasad Yadav versus State of Bihar and

another 2013(14) SCC 461 as well as decisions of this Court in

Janeshwar Dutt versus Sanjiv Kumar 2007 (2) RCR (Criminal) 628,

Narinder Singh versus State of Punjab and others 2011 (5) RCR

(Criminal) 563 and Rajinder Kumar versus Vijay Kumar 2011 (2)

RCR (Criminal) 696.

I have heard learned counsel for the petitioner at length.

A perusal of the file reveals that the documents, which the

complainant seeks to prove, are already present on the case file. The

respondent – complainant filed a complaint under Sections 406, 498A,

323, 506, 120B IPC wherein allegations of ill-treatment and harassment

meted out to her by all the accused are levelled. Allegations of demand

of dowry, hostile atmosphere at the in-laws family as well as specific

instances of ill-treatment meted out to her have been mentioned.

Details of various panchayats convened for an amicable resolution of

the dispute are also mentioned. It is specifically stated in para 9 of the

complaint that the matter was reported to the police. In her statement

before the learned trial Court annexed as Annexure P-2 with this

petition, the complainant (CW1) has clearly deposed regarding

numerous complaints submitted by her to the police as well as to the

Deputy Commissioner, Nawanshahr.

Learned trial Court has specifically observed as under:-

” In this backdrop, it is to be seen if there are sufficient
reasons to summon the witnesses as mentioned above by
the complainant for their examination. Perusal of case file

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shows that in preliminary evidence complainant got
examined CW5 Ms. Gurmeet Kaur, Clerk DC office
Patiala who brought record regarding application dated
18.02.2015 moved by complainant Surjit Kaur and CW6
HC Suresh Kumar has brought record regarding
application filed by the complainant against her husband
and family members to SSP, Nawanshahr dated
24.12.2015. However, these witnesses were not examined
in pre-charge evidence. Complainant has moved this
application for examination of these two witnesses for the
purpose of proving on record the complaints filed by the
complainant to the DC, SBS Nagar and SSP, SBS Nagar.
The documents which complainant wants to bring on
record in pre-charge evidence are already on case file.
These documents are required for just and proper decision
of the case. More so, no prejudice is going to be caused to
accused as accused will be provided opportunity to cross
examine the witnesses. Thus, application under Section 311
Cr.P.C. filed by complainant is allowed. Application stands
disposed of accordingly.”

The Hon’ble Supreme Court after considering various
earlier decisions in the case of Rajaram Prasad Yadav (supra) has
held as under:-

“23. From a conspectus consideration of the above
decisions, while dealing with an application under Section
311 Cr.P.C. read along with Section 138 of the Evidence
Act, we feel the following principles will have to be borne
in mind by the Courts:

a) Whether the Court is right in thinking that the new
evidence is needed by it? Whether the evidence sought to
be led in under Section 311 is noted by the Court for a just
decision of a case?

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b) The exercise of the widest discretionary power under
Section 311 Cr.P.C. should ensure that the judgment should
not be rendered on inchoate, inconclusive speculative
presentation of facts, as thereby the ends of justice would
be defeated.

c) If evidence of any witness appears to the Court to be
essential to the just decision of the case, it is the power of
the Court to summon and examine or recall and re-examine
any such person.

d) The exercise of power under Section 311 Cr.P.C. should
be resorted to only with the object of finding out the truth
or obtaining proper proof for such facts, which will lead to
a just and correct decision of the case.

e) The exercise of the said power cannot be dubbed as
filling in a lacuna in a prosecution case, unless the facts and
circumstances of the case make it apparent that the exercise
of power by the Court would result in causing serious
prejudice to the accused, resulting in miscarriage of justice.

f) The wide discretionary power should be exercised
judiciously and not arbitrarily.

g) The Court must satisfy itself that it was in every respect
essential to examine such a witness or to recall him for
further examination in order to arrive at a just decision of
the case.

h) The object of Section 311 Cr.P.C. simultaneously
imposes a duty on the Court to determine the truth and to
render a just decision.

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i) The Court arrives at the conclusion that additional
evidence is necessary, not because it would be impossible
to pronounce the judgment without it, but because there
would be a failure of justice without such evidence being
considered.

j) Exigency of the situation, fair play and good sense
should be the safe guard, while exercising the discretion.
The Court should bear in mind that no party in a trial can be
foreclosed from correcting errors and that if proper
evidence was not adduced or a relevant material was not
brought on record due to any inadvertence, the Court
should be magnanimous in permitting such mistakes to be
rectified.

k) The Court should be conscious of the position that after
all the trial is basically for the prisoners and the Court
should afford an opportunity to them in the fairest manner
possible. In that parity of reasoning, it would be safe to err
in favour of the accused getting an opportunity rather than
protecting the prosecution against possible prejudice at the
cost of the accused. The Court should bear in mind that
improper or capricious exercise of such a discretionary
power, may lead to undesirable results.

l) The additional evidence must not be received as a
disguise or to change the nature of the case against any of
the party.

m) The power must be exercised keeping in mind that the
evidence that is likely to be tendered, would be germane to
the issue involved and also ensure that an opportunity of

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rebuttal is given to the other party.

n) The power under Section 311 Cr.P.C. must therefore, be
invoked by the Court only in order to meet the ends of
justice for strong and valid reasons and the same must be
exercised with care, caution and circumspection. The Court
should bear in mind that fair trial entails the interest of the
accused, the victim and the society and, therefore, the grant
of fair and proper opportunities to the persons concerned,
must be ensured being a constitutional goal, as well as a
human right.”

In this backdrop, it cannot be said that the learned trial

Court has exercised its power capriciously or in an arbitrary manner or

that the documents sought to be proved are not necessary for the just

and proper adjudication of the case, not being germane to the issue

involved. The argument that the application under Section 311 Cr.P.C.

should not have been allowed at a belated stage is of no avail to the

petitioner in the given circumstances of this case.

Learned counsel for the petitioner is unable to point out

any illegality or infirmity in the impugned order 03.02.2018 passed by

learned Judicial Magistrate First Class, Shaheed Bhagat Singh Nagar,

which calls for interference by this Court in exercise of jurisdiction

under Section 482 Cr.P.C.

Present petition is, accordingly, dismissed.

(Lisa Gill)
March 01, 2018 Judge
rts
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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