Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1345 OF 2011
(Arising out of S.L.P. (Criminal) No. 6562 of 2010)
Vijay Kumar ... Appellant
Versus
State of U.P. and another ...Respondents
J U D G M E N T
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,
2
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
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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.
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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
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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
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Sections 7, 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, 1988. The
prosecution also submitted a list of witnesses. The
list did not indicate the name of Smt. Ruchi Saxena
as one of the witnesses to be examined in the case
because she was neither examined during the
investigation of the complaint lodged by the
appellant nor has any concern with the criminal
case.
7. On December 16, 2006 an application dated
February 26, 2004 was moved on behalf of Smt.
Ruchi Saxena in the suit filed by her before the trial
court seeking permission to withdraw the suit with
liberty to file fresh suit in case there was fresh
cause of action. The said application was allowed
and the record shows that the learned counsel for
Nagar Palika was also present at the time when the
said order was passed.
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8. After framing of necessary charges against the two
accused the trial of the case was conducted before
the learned Special Judge, Bareilly in Special Case
No. 2 of 2003. During the trial the prosecution
examined witnesses. They were cross-examined on
behalf of the accused. On March 18, 2010 the
prosecution submitted certified copies of the orders
passed by the competent court and the High Court
in respect of civil litigation. The learned Special
Judge, by an order dated March 22, 2010, allowed
the papers to be admitted in evidence, by awarding
cost of Rs.500/- to each of the accused and closed
the evidence on behalf of the prosecution.
Thereafter, the case was fixed for April 2, 2010 for
statements of the accused to be recorded under
Section 313 of the Code of Criminal Procedure and
for defence evidence, if any.
9. On April 2, 2010, three separate applications were
filed by the accused. One application No. 103 Kha
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was filed by accused Tajammul Hussain requesting
the court to summon Smt. Ruchi Saxena as a court
witness. Second application being No. 104 Kha was
filed to recall the present appellant Vijay Kumar,
PW-8 Anoop Kumar, PW-10 Lekh Pal Lala Ram and
PW-11 Investigating Officer. Third application being
No. 105 Kha was moved by the accused Shamim
Ahmed to recall the appellant. On April 15, 2010,
objections were filed on behalf of the prosecution to
the three applications submitted by the accused.
So far as application praying to summon Smt.
Ruchi Saxena and examine her as a court witness
was concerned, it was stated on behalf of the
prosecution that the application was filed to delay
the trial because the accused were fully aware of the
fact that Smt. Ruchi Saxena was residing in
America as a citizen of USA and it was difficult for
her to appear as a witness. It was also pointed out
by the prosecution that Smt. Ruchi Saxena had
nothing to do with this case and neither she was
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examined under Section 161 of the Code of Criminal
Procedure nor her name had been listed as one of
the prosecution witnesses. What was maintained
by the prosecution was that the application was
filed with mala fide intention and accused had failed
to indicate in the application as to what was the
intention of their questioning Smt. Ruchi Saxena
especially when no questions and/or suggestions
were put to any of the witnesses examined by the
prosecution with reference to her.
10. The learned Special Judge, by order dated April 23,
2010, dismissed all the three applications.
Therefore, feeling aggrieved, the respondent No. 2
filed a revision petition being Criminal Revision No.
1895 of 2010 before the High Court challenging the
order by which his request to summon and examine
Smt. Ruchi Saxena as a court witness was rejected.
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11. The High Court has allowed the revision petition by
judgment dated May 10, 2010 giving rise to the
instant appeal.
12. This Court has heard the learned counsel for the
parties and considered the documents forming part
of the appeal.
13. Section 311 of the Code of Criminal Procedure reads
as under: -
"311. Power to summon material
witness, or examine person present. - Any
Court may, at any stage of any inquiry, trial or
other proceeding 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."
This Section consists of two parts, viz., (1) giving
discretion to the court to examine the witness at any
stage; and (2) the mandatory portion which compells a
court to examine a witness if his evidence appears to be
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essential to the just decision of the case. The Section
enables and in certain circumstances, imposes on the
Court the duty of summoning witnesses who would have
been otherwise brought before the Court. This Section
confers a wide discretion on the Court to act as the
exigencies of justice require. The power of the Court
under Section 165 of the Evidence Act is complementary
to its power under this Section. These two sections
between them confer jurisdiction on the Court to act in
aid of justice. There is no manner of doubt that the
power under Section 311 of Code of Criminal Procedure
is a vast one. This power can be exercised at any stage of
the trial. Such a power should be exercised provided the
evidence which may be tendered by a witness is germane
to the issue involved, or if proper evidence is not adduced
or relevant material is not brought on record due to any
inadvertence. It hardly needs to be emphasized that
power under Section 311 should be exercised for the just
decision of the case. The wide discretion conferred on
the court to summon a witness must be exercised
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judicially, as wider the power, the greater is the necessity
for application of the judicial mind. Whether to exercise
the power or not would largely depend upon the facts and
circumstances of each case. As is provided in the
Section, power to summon any person as a witness can
be exercised if the court forms an opinion that the
examination of such a witness is essential for just
decision of the case.
14. The record nowhere shows that any complaint was
filed by Smt. Ruchi Saxena against any of the
accused making grievance that they had demanded
any bribe amount from her. The case of the
prosecution is simple that in order to settle the
matter relating to construction of boundaries on the
disputed property, which is being supervised by the
appellant who is father of Smt. Ruchi Saxena, the
respondent No. 2 and another accused had
demanded a sum of Rs.2 lacs as bribe amount from
the appellant as a result of which the appellant had
13
filed complaint pursuant to which a trap was laid
and accused were arrested while receiving an
amount of Rs.50,000/- as part payment of the bribe
amount of Rs.2 lacs. As is evident from the facts of
the case after success of the trap, FIR in the case
was lodged by Mr. V.K. Bhardwaj, Inspector U.P.
Vigilance Establishment. After framing of charge
and commencement of trial several witnesses were
examined by the prosecution, who had been cross-
examined by the accused. Smt. Ruchi Saxena had
nothing to do with the bribe case either as a
complainant or as a witness to the trap arranged by
the police. Her name did not figure as one of the
witnesses to be examined by the prosecution when
charge-sheet was submitted in the court of learned
Special Judge. The High Court without specifying
as to how Smt. Ruchi Saxena is a material witness
or how her evidence is essential for just decision of
the case, has directed the learned Special Judge to
summon Smt. Ruchi Saxena as a court witness
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under Section 311 of the Code of Criminal
Procedure and to examine her. Though Section 311
confers vast discretion upon the court and is
expressed in the widest possible terms, the
discretionary power under the said Section can be
invoked only for the ends of justice. Discretionary
power should be exercised consistently with the
provisions of the Code and the principles of criminal
law. 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 the learned Special
Judge to examine Smt. Ruchi Saxena as a court
witness, the High Court did not examine the
reasons assigned by the learned Special Judge as to
why it was not necessary to examine her as a court
witness and has given the impugned direction
without assigning any reason. The High Court
failed to consider the case of the prosecution that
the application was submitted by the respondent
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No. 2 only to delay the trial and no case was made
out by the respondent No. 2 as to why direction
should be given to examine Smt. Ruchi Saxena as a
court witness. In a bribe case what is required to
be proved by the prosecution is that there was a
demand of bribe by the accused from the
complainant and that pursuant to the said demand,
bribe amount was accepted by the accused. To
prove this case it was not necessary for the court to
examine Smt. Ruchi Saxena as a court witness.
15. Neither the respondent No. 2 in his application nor
the court in the impugned judgment has specified
the reason as to why and how examination of Smt.
Ruchi Saxena as a court witness is necessary.
16. At this stage, it would be advantageous to refer to
decision of this Court in Sawal Das vs. State of
Bihar AIR 1974 SC 778. In the said case the
appellant, his father and his mother were charged
for murder of appellant's wife. Immediately after
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the wife was pushed inside the room and her cries
of "Bachao Bachao" came from inside the room, her
children were heard crying and uttering words that
their mother was either being killed or had been
killed. But the children were not produced as
witnesses in the trial court. There was some
evidence in the case that the appellant's children
had refrained from revealing any facts against the
appellant or his father or his step-mother when they
were questioned by the relations or by the police.
The argument before this Court was that they
should have been summoned as court witnesses for
examination under Section 540 of the Code of
Criminal Procedure, 1898, which is para material
same as Section 311 of Code of Criminal Procedure,
1973. This Court has held that the court could
have rightly decided in such circumstances not to
examine the children under Section 540 of the Code
of Criminal Procedure. If this is the approach to be
made while deciding application under Section 311
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of the Code of Criminal Procedure, this Court fails
to understand as to how the evidence of Smt. Ruchi
Saxena was relevant in the instant case and why
direction should be given to examine her as a court
witness, as she was neither present at the time
when the bribe was demanded or even at the time
when the trap was arranged and laid. Without
examining the relevance of evidence, which may be
tendered by Smt. Ruchi Saxena or the necessity of
examining her as a court witness or examining the
question of prejudice if at all which is likely to be
caused to the defence, if she is not examined, the
High Court has directed the learned Special Judge
to examine Smt. Ruchi Saxena as a court witness.
There is no manner of doubt that the power under
Section 311 of the Code of Criminal Procedure,
1973 is exercised arbitrarily and, therefore, the
impugned judgment is liable to be set aside.
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17. For the foregoing reasons the appeal succeeds. The
impugned order dated May 10, 2010, rendered by
the learned Single Judge of the High Court of
Judicature at Allahabad in Criminal Revision No.
1895 of 2010 directing the learned Special Judge to
examine Smt. Ruchi Saxena as a court witness is
hereby set aside.
18. The appeal accordingly stands disposed of.
.....................................J.
[J.M. Panchal]
.....................................J.
[H.L. Gokhale]
New Delhi;
August 03, 2011.
