Jagir Singh Sidhu vs Harbeant Singh

S.S. Saron, J.—The present Revision Petition has been filed against the order 20.3.2001 passed by the learned Judicial Magistrate 1st Class, Ludhiana, whereby application u/s 311 of the Code of Criminal Procedure (Cr. P.C. for short) filed by the respondent-complainant for summoning Shri Harchand Singh Gill, Advocate as a witness to prove the service or notice of cancelling the power of attorney given by the respondent in favour of the petitioner has been allowed.

The petitioner herein is the accused in the Criminal complain titled Harbeant Singh v. Jagir Singh pending in the Court of learned Magistrate 1st Class, Ludhiana. The allegations against petitioner in the complaint are that Harbeant Singh complainant-respondent had appointed the petitioner as his special power of attorney on 21.3.1983. Thereafter he had apprehension that the petitioner was not acting in his interest, as such he got served a registered notice dated 4.4.1989 through his counsel, cancelling the said power or attorney. The petitioner was asked not to act as an attorney of the complainant. However, despite the revocation of the said power of attorney, the petitioner is alleged to have executed a sale deed dated 16.6.1989 and sold a plot including construction measuring 500 sq. yards in village Barewala Awana. It is on these allegations and some other allegations regarding transfer of scooter by the petitioner acting as an attorney of the respondent that the complaint was filed, which is pending.

During the pendency of the proceedings, the complainant filed an application u/s 311 of the Cr. P.C. for summoning Shri Harchand Singh Gill, Advocate through whom the legal notice dated 4.4.1989 which is Ex.P-2 on the records of the trial Court was served. The application has been allowed vide order dated 20.3.2001, which is assailed by the petitioner-accused.

Learned counsel appearing for the petitioner has contended that the learned trial Magistrate, has totally ignored the provisions of Section 311 of the Cr. P.C. which provide that the Court may at any stage summon any person "if his evidence appears to it to be essential to the just decision of the case." He contends that the learned trial Magistrate has given no finding in this regard and that the impugned order was passed only on the ground that it would be in the interest of justice to give full opportunity to the party. He further contends that in fact the complainant earlier also filed a similar application dated 21.2.1995 u/s 311 of the Cr. P.C. for adducing additional evidence. In the said application, the complainant prayed for allowing him to appear as his own witness in order to prove the service of the notice dated 4.4.1989 given by his counsel Shri Harchand Singh Gill. The said application was, however, dismissed by the learned trial Magistrate vide order dated 22.7.1995 Annexure P-2 with the observation that the evidence sought to be produced by the complainant was already in his knowledge and as such at a belated stage, the prosecution cannot be allowed to improve its version or fill in the lacuna. It is also contended that Criminal Revision Petition No.777 of 1995 has already been dismissed by this Court against the aforesaid order dated 22.7.1995 passed by the learned trial Magistrate. It is lastly contended that the proceedings in the case have been pending since 31.10.1991 and the charge was framed on 23.7.1997 and that at such a belated stage, the complainant cannot be allowed to fill in the lacuna in its case as it would prejudice his rights under the law.

The learned counsel for the respondent on the other hand contends that it is not a case of filling in the lacuna but is a case for correcting errors which has occurred due to oversight and inadvertence. He states that in the earlier application for leading additional evidence the prayer of the respondent was to re-appear as his own witness whereas in the present application it is his counsel who is to be examined. He also contends by way of preliminary objections that the order and that petition against an interlocutory order passed by the learned trial Magistrate is an interlocutory order is barred by the provisions of Section 397(2) of the Cr. P.C.

I have considered the respective submissions of the parties and with their assistance gone through the records of the case.

First of all the preliminary objection of the respondent with regard to the revision petition being barred against an interlocutory order may be considered. In this regard it may be noticed that the petitioner initially filed Criminal Revision Petition No.830 of 2001. This Court vide order dated 25.5.2001, on the oral request of the learned counsel for the petitioner treated the said Criminal Revision Petition as a petition u/s 482 of the Cr. P.C. This petition was accordingly numbered as Criminal Misc. No.21347-M of 2001. Therefore, the present is a Criminal Misc. Petition u/s 482 Cr. P.C. can interfere with an order which leads to miscarriage of justice. The Hon''ble Supreme Court in the case of Krishnan and another Vs. Krishnaveni and another, has held that there is paramount power of continuous superintendence of the High Court u/s 483 of the Cr. P.C. over the Courts of Judicial Magistrate subordinate to it to examine the correctness, legality, or propriety of any order passed. The High Court may refuse to exercise its jurisdiction on the basis of self-imposed restrictions. However, it is well known that for securing the ends of justice, the High Court can interfere with an order which causes miscarriage of justice or where the order is palpably illegal or unjustified. In this view of the matter, I am unable to agree with the contention of the learned counsel for the respondent6 that the petition is liable to be dismissed on the sole ground that it is against an interlocutory order and is barred by the provisions of Section 397(2) of the Cr. P.C.

The case may, therefore, be considered on merit as regards the summoning of Harchand Singh Gill Advocate, in pursuance of the impugned order dated 20.3.2001. In order to appreciate this contention, the provisions of Section 311 of the Cr. P.C. which are relevant for determination of the matter may be adverted to. The same read as under:-

Power to summon material witness, or examine person present. - Any Court may, at any stage of any inquiry, trial or other proceedings 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.

Section 311 of the Cr. P.C. confers wide powers on the Court at any stage of the trial to summon any person as a witness, though not examined as a witness or recall and re-examine any person already examined. The contention of the petitioner, however, is that the Court is to satisfy itself that his evidence appears to it to be essential for the just decision of the case. In support of his contention the learned counsel for the petition relies upon the judgment of this Court in Budh Ram v. State of Punjab, 1996 (2) RCR 270 in which reliance was placed on the judgment of the Hon''ble Supreme Court in Mohan Lal Shamji Soni v. Union of India and another, 1991 (3) RCR 182 : AIR 1991 SC 1346. It was held by the Hon''ble Supreme Court in the latter case as follows:-

However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and "consistently with the provisions of the Code. The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforesaid-motioned two steps if the fresh evidence to be obtained is essential to the just decision of the case."

In Budh Ram''s case (supra) the accused was facing trial for an offence under Sections 460,460 read with Section 34 of the I.P.C. The prosecution evidence had been closed and thereafter the accused were examined u/s 313 Cr. P.C. It was then that an application was filed for recalling one of the prosecution witness which was allowed by the learned trial Court. This Court on the consideration of the circumstances held that the conduct of the prosecution lacked bona fide and there was delay of more than two months in moving the application. It was in these circumstances that the accused who was facing trial for a considerable period could not be reverted back to the original position by introducing further statements which the prosecution was obliged to prove at the first instances. In the present case the evidence of the complainant has not been concluded and his witnesses are still to be examined, neither has the statement of the petitioner been recorded in terms of Section 313 of the Cr. P.C. Therefore, the ratio of the judgment in Budh Ram''s case (supra) is inapplicable. The judgment in Mohan Lal Shamji Soni''s case (supra) was considered by the Hon''ble Supreme Court in a later judgment in the case titled Rajendra Prasad v. The Narcotic Cell through its Office-in-charge, Delhi, 1999 (3) RCR 440. After noticing the judgment in Mohan Lal Shamji Soni''s case (supra), the Hon''ble Supreme Court held as follows:-

It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers u/s 311 of the Code or u/s 165 of the Evidence Act by saying that the court could not "fill the lacuna in the prosecution case." A lacuna in prosecution is not to be equated with the fallout of an over sight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up.

Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally to go the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. 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. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.

The judgment in Rajendra Prasad''s case (supra) has been reiterated by the Hon''ble Supreme Court in the case Shailendra Kumar Vs. State of Bihar and Others, , wherein it was held that bare reading of Section 311 of the Cr. P.C. revealed that it is of a very wide amplitude and if there was any negligence, laches or mistakes by not examining material witnesses, the Court''s function to render just decision by examining such witnesses at any stage is not, in any way, impaired.

The learned counsel for the petitioner has also relied upon the judgment in Iqbal Singh v. State of Punjab, 1999 (4) RCR 625. The petitioner therein had filed a complaint under Sections 406 and 420 of the I.P.C. The accused examined himself as a witness and denied his signatures on the bills in question. Thereafter the petitioner filed an application to permit him to place on record the report of the expert and to examine him. That application was rejected. In petition before this Court, it was held that it was not the case of the petitioner therein that he was not aware of the fact that the accused has denied his signatures earlier and the denial has come only during the cross-examination of the accused as a witness of defence. The said case also relates to a stage where the complainant had closed his evidence and the accused examined himself as a witness and it was held that the complainant should have produced the evidence of the expert while adducing his evidence before examination of the accused u/s 313 of the Cr. P.C. and that he cannot be permitted to fill up lacuna at a later stage. Besides, it was held that it cannot be said that it was an inadvertent mistake. The case in hand, as already noticed above, is pending trial and the statement of the accused u/s 313 Cr. P.C. has not been recorded.

The facts and circumstances that have come on record show that prima facie the accused has been using the power of attorney of the complainant despite its having been cancelled. His likely defence was that he was not served with the notice. In order to come to a just decision in this case, I am of the view that for the just decision of the case it is essential to examine Shri H.S. Gill, Advocate, as a witness to show whether the notice had been served on the accused. No prejudice would be caused in reaching the truth or falsity of the service of notice on the accused and if the evidence of material witness was left out due to inadvertence or negligence, the Court''s function to render just decision by examining him at the stage at which the case now is, not in any way impaired.

The other contention of the petitioner is that the complainant had earlier filed an application for summoning himself as a witness, which was declined vide order dated 22.7.1995 by the learned Judicial Magistrate First Class, Ludhiana. The said order has been placed on record as Annexure P-2. I have perused the same. In terms of the said order the application of the complainant was that he wanted to re-examine himself as a witness and wanted to examine another witness to prove written statement filed by the accused in the Civil Suit between the parties by way of additional evidence. It was held that the complainant by producing been filed by the accused in Civil litigation was held to be in the knowledge of the complainant prior to his filing the complainant. In these circumstances, it was held that he could not be allowed to bring on record at that stage the above said documents. The said application did not relate to the production of an additional evidence which has been left out by oversight and it is material for the just decision of the case. The Criminal Revision Petition No.777 of 1995 against the earlier order dated 22.7.1995 of the learned trial Magistrate was dismissed by this Court on 31.5.1996 on the ground that a Revision Petition against an interlocutory order including an order dismissing or allowing the application u/s 311 of the Cr. P.C. was not maintainable. Therefore, it cannot be said that the earlier dated 22.7.1995 Annexure P-2 passed by the learned Judicial Magistrate would in any way be a bar to the filing of subsequent application for producing Shri Harchand Singh Gill, Advocate as a witness. The said application was confined to its own facts and the dismissal of the said Revision petition would not come in the way in deciding the present petition.

In the circumstances a fore noticed, the Criminal Misc. petition has no merit and is accordingly dismissed. No costs.