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2011 (5) Supreme 321
SUPREME COURT OF INDIA
J.M. Panchal and H.L. Gokhale, JJ.
Vijay Kumar — Appellant
versus
State of U.P. and another — Respondents
Criminal Appeal No. 1345 of 2011
(Arising out of S.L.P. (Criminal) No. 6562 of 2010)
Decided on : 3-8-2011
Code of Criminal Procedure,1973- Section 311 -Appeal against judgment passed by High Court by which the order passed by Special Judge, Bareilly refusing to summon “ R” staying in U.S.A., as a court witness, was set aside and Special Judge, Bareilly was directed to summon and examine her as court witness under Section 311 of Crpc.-Held record nowhere showed that any complaint was filed by “ R” against any of accused making grievance that they had demanded any bribe amount from her- The case of the prosecution was simple that in order to settle the matter relating to construction of boundaries on disputed property, which was being supervised by appellant who was father of “ R” respondent No. 2 and another accused had demanded a sum of Rs.2 lacs as bribe amount from appellant and accused were arrested while receiving an amount of Rs.50,000/- as part payment of the bribe amount of Rs.2 lacs. - “ R” had nothing to do with the bribe case either as a complainant or as a witness to the trap arranged by police- High Court without specifying as to how “ R” was a material witness or how her evidence was essential for just decision of case, directed Special Judge to summon “ R” as a court witness under Section 311 of Crpc.and to examine her- 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 Special Judge to examine “ R” as a court witness, High Court did not examine reasons assigned by Special Judge as to why it was not necessary to examine her as a court witness -Since power under Section 311 of Crpc was exercised arbitrarily impugned judgment was held liable to be set aside-Appeal allowed. (Paras 14 to 17)
Facts of the Case :
Present Appeal has been filed against judgment passed by High Court by which the order passed by Special Judge, Bareilly refusing to summon “ R” staying in U.S.A., as a court witness, was set aside and Special Judge, Bareilly was directed to summon and examine her as court witness under Section 311 of Crpc.
Findings of the Court :
The Court held that record nowhere showed that any complaint was filed by “ R” against any of accused making grievance that they had demanded any bribe amount from her. The case of the prosecution was simple that in order to settle the matter relating to construction of boundaries on disputed property, which was being supervised by appellant who was father of “ R” respondent No. 2 and another accused had demanded a sum of Rs.2 lacs as bribe amount from appellant and accused were arrested while receiving an amount of Rs.50,000/- as part payment of the bribe amount of Rs.2 lacs. “ R” had nothing to do with the bribe case either as a complainant or as a witness to the trap arranged by police. High Court without specifying as to how “ R” was a material witness or how her evidence was essential for just decision of case, directed Special Judge to summon “ R” as a court witness under Section 311 of Crpc.and to examine her. 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 Special Judge to examine “ R” as a court witness, High Court did not examine reasons assigned by Special Judge as to why it was not necessary to examine her as a court witness .Since power under Section 311 of Crpc was exercised arbitrarily impugned judgment was held liable to be set aside.Appeal was allowed.
JUDGMENT
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, 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 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. 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 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 Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption
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