2020 Supreme(P&H) 505

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Arun Kumar Tyagi, J.
Vijay Pal - Petitioner
Versus
State of Haryana and another – Respondents
CRM-M-25761 of 2015
Decided On : 27-05-2020

Headnote:

The petitioner has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) for setting aside order dated 01.07.2015 passed by learned Chief Judicial Magistrate First Class, Sonepat in Criminal Case No.583/1 of 2007 titled ‘State Vs. Vijay Pal and others’ arising out of FIR No.184 dated 24.07.2007 registered under Sections 419, 420, 468 and 471 read with Section 120-B of the Indian Penal Code, 1860 (for short ‘the I.P.C.’) at Police Station City Sonepat.

Fact of the Case:

18 persons named in the complaint are alleged to have taken loan from the complainant bank against the execution of loan documents including registered mortgage deeds. On default by them in repayment of loan, the bank officials visited their village and came to know that no land existed in their name and the jamabandies produced by them were fake. The police charge-sheeted 11 persons and found 7 persons to be innocent. On failure of the prosecution to produce its entire evidence, evidence of the prosecution was closed by the Court vide order dated 06.03.2014. The prosecution subsequently filed application under Section 311 of the Cr.P.C. for summoning Sachin Kumar Goyal and Indraj, Bank Managers for their examination in the case which was dismissed vide order dated 06.08.2014. While the case was pending for defence evidence and arguments, the Court vide impugned order dated 01.07.2015 ordered summoning of PW-1 M.K. Goyal Branch Manager, State Bank of Patiala, Main Branch Sonepat now posted as Chief Manager, State Bank of Patiala, Head Office Patiala along with original record as well as attested copies for his re-examination in order to prove the original record of the documents produced by the 18 accused persons at the time of availing of loan and summoning of the concerned Registry Clerk of the Office of Sub-Registrar, Sonepat for production of the record of the mortgaged deeds photostat copy of which were placed on record as Mark-H, Mark-M, Mark-Q, Mark-Y, Mark-A3, Mark-A8, Mark-A12, Mark-A15, Mark-A20, Mark-A25 and Mark-A29.

Finding of the Court:

The Court observed that the impugned order is assailed on the grounds that the trial Court having closed the evidence of the prosecution after giving sufficient opportunities to it for production of the same could not review order dated 06.03.2014 closing evidence of the prosecution and order dated 06.08.2014 dismissing application of the prosecution filed under Section 311 of the Cr.P.C. for summoning Sachin Kumar Goyal and Indraj, Bank Managers and that the power under Section 311 of the Cr.P.C. could not be exercised by the Court to fill up the lacuna in the case of non-production of original documents which were not insisted for by the prosecution during comprehensive examination and cross examination of PW1 M. K. Goyal, concerned Branch Manager and PW-9 Satbir Singh, Investigating Officer of the case. Further the Court could not reopen the trial by summoning a new witness after 8 years of protracted trial agonizing the petitioner which will result in complete denial of his fundamental right to speedy trial guaranteed by the constitution.

Issues: Whether the impugned order amounts to review of above said orders which is not permissible and whether the Court is barred by the above-said orders from exercising the power under Section 311 of the Cr.P.C.

Ratio Decidendi: The Court held that Section 311 of the Cr.P.C. empowers the Court to summon material witness or examine person present and the same reads as under :- “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 be essential to the just decision of the case.” The Court further held that the power under Section 311 of the Cr.P.C. can be exercised at any stage of the case before passing of the judgment and is, therefore, in the very nature of things meant to be exercised even after closing of the evidence of the prosecution or the accused. For the purpose of exercise of the power under Part-II of Section 311 of the Cr.P.C. it will be wholly immaterial as to whether the evidence of the prosecution or the accused was closed by the prosecution or the accused or by the Court by its order and the mere fact that evidence of the prosecution or the accused was closed by Court order will not bar the Court from exercising its power under Section 311 Part-II of the Cr.P.C.

Final Decision: The Court dismissed the petition holding that the impugned order does not suffer from any illegality or irregularity and not being abuse of process is not liable to be quashed in exercise of powers under Section 482 of the Cr.P.C. for ends of justice.