Smt. Ranjana Mishra vs State of U.P. and Another

Allah Raham, J.—Heard Shri H. G. S. Parihar, learned Counsel for the Petitioner, Shri S. K. Dixit, learned A.G.A. and perused the record.

In S.T. No. 344 of 2002, pending disposal before the Additional Sessions Judge/Fast Track Court 2, Raebareli, statements of two witnesses of fact, namely, Shri Swambar Nath Mishra alias Lalla P.W. 1 and Shri Shiv Karan Mishra, P.W. 2 has been recorded. Thereafter, statements of formal witnesses were recorded. At that stage, P.W. 1 moved an application u/s 311, Cr. P.C. and prayed that one Nisha Nath Trivedi is a witness of this case and he should also be summoned as a witness and examined in the Court. Petitioner filed her objection and specifically controverted the claim of the applicant that the said Nisha Nath Trivedi is a witness of this case.

In para 4 of her objection, the Petitioner has specifically stated that alleged witnesses were never examined by the Investigating Officer u/s 161, Cr. P.C. nor their presence is sparking from any corner.

After hearing the learned Counsel for the parties and perusing the record, the learned trial court re-affirmed that the name of Nisha Nath Trivedi does not figure in the F.I.R. or in the statement u/s 161, Cr. P.C. His name also does not figure in the list of witnesses given in the charge-sheet. He, however, allowed the application and summoned Shri Nisha Nath Trivedi, as a witness in this case.

Aggrieved against the said order, the Petitioner has preferred this petition u/s 482, Cr. P.C. and has prayed that the impugned order be quashed.

The learned Counsel for the Petitioner submits that said Nisha Nath Trivedi is absolutely a stranger to the entire proceedings. His name has figured out of the blue. He is not a witness, whose statement has been recorded u/s 161, Cr. P.C. His name also does not figure in the statements of witnesses, who have been examined u/s 161, Cr. P.C. by the Investigating Officer. Similarly, his name does not figure in the statement of P.W. 1 and P.W. 2, who are said to be the witnesses of the fact. The learned Counsel for the Petitioner also submits that examination of Nisha Nath Trivedi will seriously prejudice the Petitioner because she will not be able to cross-examine the said witnesses effectively.

Lastly, it has been submitted that it will delay the trial of the Petitioner and will also fill up the lacuna in the prosecution case.

I have also carefully gone through the copy of the case-diary, which has come in a closed envelope. It is not disputed by the learned A.G.A. that the name of witness (Shri Nisha Nath Trivedi) does not figure in the case-diary or in the statements of P.W. 1 and P.W. 2. His only submission is that this witness should be examined for just decision of the case. We must bear in mind that just decision of the case is not a one sided proposition. It should be a just decision for both the parties. If the aforesaid witness is summoned u/s 311, Cr. P.C., it will seriously prejudice the Petitioner because she cannot confront the said witness with any of her statement recorded u/s 161, Cr. P.C. The said witness could also not be confronted with any of the facts deposed to by P.W. 1 and P.W. 2 because the name of the aforesaid witness does not figure in the statements of P.W. 1 and P.W. 2 also.

Learned Counsel for the Petitioner has cited the case of R.N. Kakkar v. Hanif Gafoor Naviwala (Bom), 1996 JIC 189 (Bom). Following the law laid down in the case of Mohanlal Shamji Soni Vs. Union of India and another, the Bombay High Court held that the Court has to examine the question whether the evidence of the person sought to be summoned and examined or recalled or re-examined "appears to it to be essential to the just decision of the case." If the answer to this question is in the affirmative, then Section 311 of the Code of Criminal Procedure casts a mandatory duty on the Court. The Court further observed that although the amplitude of the powers vested in a Court u/s 311 of the Criminal Procedure Code, 1973 is very wide, the object of exercise of such powers is not to enable the prosecution to adduce evidence which would plug in the holes in its case, for such an exercise of power would be defeating the very object for which it has been bestowed on the Court, namely the just decision of the case. This would be a capricious exercise of power by the Court. It is a trite in law that no party can take advantage of its own wrong and if the powers are exercised under this section to enable the prosecution to plug in the holes in its case, the aforesaid principle would be given a go-bye.

In view of the law discussed above and the factual position given in detail in the body of the judgment, I find force in this petition and the same deserves to be allowed and the impugned order dated 6.2.2004, is hereby quashed.

Learned trial court shall proceed with the trial of the accused persons in S.T. No. 344 of 2002, State v. Smt. Ranjana Mishra and Ors. expeditiously.