Man Singh vs State of H.P.

Kuldip Singh, J.—This judgment shall dispose of Cr. MMO Nos. 137, 138, 139 and 140 of 2011 as common question is involved in all the petitions. The Petitioner is facing four trials under Sections 409, 420, 468, 471, 477-A Indian Penal Code and u/s 13(2) of Prevention of Corruption Act. The trials are pending before Additional Sessions Judge (exercising the powers of Special Judge under the Prevention of Corruption Act), Mandi. The Petitioner was earlier convicted in all the cases. The Petitioner filed Criminal Appeal Nos. 30,31, 32 and33 of 2005 in this Court which were allowed on 18.03.2011 and the cases were remanded to the Trial Court with the direction to re-write the judgment afresh in all the four cases separately after hearing parties. It was also observed that in case the parties or either of them makes an application, for additional evidence that would be decided before disposing of the cases finally.

The Petitioner filed application u/s 311 Code of Criminal Procedure in each case for recalling witnesses examined by the prosecution. It has been stated in the applications that during the course of the trial, the State did not produce in the Court the duplicate actual payment receipts which were allegedly taken vide memo Ex. DW1/B by Vigilance Department. This has caused prejudice to the Petitioner inasmuch as he could not confront the Drawing and Disbursing Officer as well as Divisional Commissioner and other witnesses with the said documents. A prayer has been made in each application that State may be directed to produce all duplicate actual payment receipts in the Court and all witnesses may be allowed to be re-examined. The Additional Sessions Judge dismissed the applications in all the four cases by separate orders dated 16.07.2011 which have been assailed by the Petitioner in each petition.

I have heard the learned Counsel for the Petitioner and learned Assistant Advocate General. It has been submitted on behalf of the Petitioner that the documents mentioned in the applications are necessary for confrontation to the witnesses in order to establish innocence of the Petitioner. It has been submitted that the trial Court has erred in dismissing the applications for recalling the witnesses along with documents mentioned in the applications. The learned Assistant Advocate General has supported the impugned orders.

The applications are vague. A prayer has been made in the applications to recall all witnesses. It has been stated at Bar by the learned Counsel for the Petitioner that the prosecution has examined witnesses more than 20 in each case and the evidence in the trial Court was recorded around the years 2002 to 2004. The appeals were earlier filed in the High Court in the year 2005. The applications of the present nature were neither filed in the trial Court nor in the High Court when the Criminal Appeal Nos. 30,31,32 and 33 of 2005 were pending in the High Court.

It is clear from the applications that Petitioner was aware of Ex. DW1/B from the very beginning, but despite that he did not take any step for production of documents mentioned in Ex. DW1/B or recalling the witnesses in the cases. It is not the case of the Petitioner that he was not aware of Ex. DW1/B from the very beginning. There is No. explanation why steps were not taken by Petitioner for summoning the record mentioned in Ex. DW1/B for confronting the prosecution witnesses at the time of their examination. The due diligence on the part of Petitioner has not been pleaded in the applications nor it has been established that the applications are bonafide. It appears the applications have been filed to delay the proceedings.

In addition, it has not been pointed out how recalling of all prosecution witnesses is necessary for confronting documents mentioned in Ex. DW1/B.The relevancy for recalling all prosecution witnesses has also not been pointed out. It has been stated by learned Counsel for Petitioner that Ex. DW1/B is the letter dated 19th February, 1990, in all the four cases which was written by Petitioner to the Accounts Officer, D.C. Office, Mandi, mentioning therein list of 46 A.P.R.s. Ex. DW1/B has already been taken on record. The effect of Ex. DW1/B will be considered by the trial Court at the appropriate stage of the cases.

Ex. DW1/B as noticed above is the letter written by Petitioner to the Accounts Officer, D.C. Office, Mandi and it is not a memo vide which the Vigilance Department has allegedly taken some documents into possession. The applications are confusing. The learned Additional Sessions Judge has committed No. illegality in rejecting the applications. In these circumstances, No. interference is called for, hence, all the petitions are dismissed. The parties through their counsel are directed to appear before Additional Sessions Judge (exercising the powers of Special Judge), Mandi, on 12.09.2011. The record be sent back immediately to the Court below so as to reach before the date fixed. The pending application (s) are also disposed of.