Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.1114 of 2013 ====================================================== Ranjit Kumar @ Ranju S/O Late Jagdish Prasad Yadav Resident Of Mohalla- Karnalganj, Gaight, P.S.- Alamganj, District- Patna The State Of Bihar Versus .... .... Petitioner/s .... .... Opposite Party/s ====================================================== Appearance: For the Petitioner/s Mr. Arbind Kr.Mouar For the Opposite Party Mr. Pramod Kumar with Mr. Ajay Kr. Singh For the State Mr. Jharkhandi Upadhyay ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 4 20-02-2013 The complainant petitioner assails the order dated 26.9.2012 passed by the learned Sessions Judge, Patna in Cr. Rev. No. 499 of 2012 preferred by the petitioner against the order dated 19.6.2012 passed by the learned Judicial Magistrate 1st Class, Patna City in C.A. Case No.630 of 2005. The trial court by the aforesaid order dated 19.6.2012 rejected the petitioner‟s application filed under section 246(6) of the Code of Criminal Procedure (for short „the Code‟). The factual matrix leading to the present application is that the complainant-petitioner lodged the aforesaid complaint alleging therein that accused had ancestral land measuring 05 kathas situated in Mohalla/Mauza Kumhrar in the township of 2
Legal Reasoning
Patna High Court Cr.Misc. No.1114 of 2013 (4) dt.20-02-2013 2 / 8 Patna. After negotiation for sale thereof a sum of Rs. 2, 50,000/- was paid by the complainant as part of the negotiated consideration amount and an agreement to sale was executed. It was agreed that remaining amount shall be paid and the sale deed would be executed within a defined period of time. Subsequently, some more amount was paid by the complainant. On one pretext or the other the accused avoided execution of sale deed. Persistent efforts made by the complainant failed to persuade the accused either to execute the sale deed or pay back the amount. The trial court upon conclusion of the enquiry as contemplated in the Code took cognizance of the offence under sections 406 & 323 IPC. The trial court thereafter allowed the complainant to adduce evidence under section 244 of the Code. In the meanwhile, the accused filed an application in this Court challenging the order taking cognizance which was admitted to hearing. Ultimately the same was dismissed on 07.08.2009 (Annexure-2). In the enquiry before the charge a petition was filed to add one Rajesh Kumar as witness of the complainant in the light of the stand taken by the accused in the application filed before this Court. The said petition was, however, not pressed and was withdrawn. On 29.08.2011 charges were framed and the witnesses of the complainant and the complainant himself were examined under 3 Patna High Court Cr.Misc. No.1114 of 2013 (4) dt.20-02-2013 3 / 8 section 246 of the Code. At this stage, an application under section 246 (6) of the Code was filed on 24.4.2012 to examine Rajesh Kumar and Krishna Kumar as witnesses on behalf of the prosecution. Along with the said application their attendance was also filed. Accused filed rejoinder thereto. On a consideration of the matter the learned trial court by order dated 19.06.2012 rejected the said application on the ground that the proposed witnesses were not cited in the complaint inasmuch as the witnesses examined under section 202 of the Code had not named them. Aggrieved by the said order, the petitioner filed revision application which was rejected by learned Addl. Sessions Judge, Patna vide order dated 26.9.2012. Hence, the present application questioning the legality of those two orders.
Legal Reasoning
Heard Mr. Arvind Kumar for the petitioner, Mr. Pramod Kumar for the accused and learned APP for the State. Counsel for the petitioner submits that considering the fact that some of the witnesses cited in the compliant were gained over by the accused and they were reluctant to come to the witness box the said application under section 246(6) of the Code was filed in the light of the stand taken by the accused before this Court while questioning the legality of the cognizance order passed in this case. The learned trial court ought to have allowed 4 Patna High Court Cr.Misc. No.1114 of 2013 (4) dt.20-02-2013 4 / 8 the application in order to do justice between the parties and thereby advance the cause of justice. Having not done so, in the facts and circumstances of the case, has occasioned the failure of justice. This Court should, therefore, interfere with the order. It is next submitted that reasons assigned by the learned trial court in rejecting the application filed under section 246(6) of the Code which have been approved by the revisional court are not in accordance with the relevant consideration to be made in this regard. The order is, therefore, not sustainable in law. He relies in this regard on a judgment of the Hon‟ble Supreme Court rendered in the case of Sayeeda Farhana Shamim vs. State of Bihar Anr. (AIR 2008 SC 2373). Per contra, learned counsel for the accused and the State supported the impugned order(s). Counsel for the accused also relied on the case of Sayeeda Farhana Shamim (supra) and submitted that the court has to guard against the dilatory tactics to be adopted by the complainant to prolong the case and resultant harassment. Such jurisdiction vested in the coiurt has to be exercised cautiously. On perusal of the order dated 19.6.2012 it appears that the trial court has rejected the application filed under section 246(6) of the Code on the ground that the witnesses sought to be 5 Patna High Court Cr.Misc. No.1114 of 2013 (4) dt.20-02-2013 5 / 8 summoned and examined by the prosecution are not cited in the complaint inasmuch as their names did not figure in course of enquiry under section 202 of the Code. On the other hand, the stand of the complainant is that some of the witnesses cited in the case have been gained over and as such other witnesses who are relevant in this regard in the light of the stand taken by the accused should be summoned in order to do justice between the parties. Such application was filed when enquiry under section 244 was being made but was not pressed in order to file the same at later stage. After framing of charge the evidence commenced in which witnesses produced by the complainant were examined. At this stage the said application invoking jurisdiction of the Court under section 246 (6) was filed along with the attendance of the witnesses. The same was rejected on the grounds noticed hereinabove. In Sayeeda Farhana Shamim (supra) the Hon‟ble Supreme Court, faced with somewhat identical situation, posed a question for its consideration whether a supplementary list of witnesses can be furnished by the complainant and the Magistrate can summon those witnesses to be examined. After considering the catena of judgments rendered by the various High Courts and the provisions of law as contained in sections 244,245 and 246 6 Patna High Court Cr.Misc. No.1114 of 2013 (4) dt.20-02-2013 6 / 8 of the Code, the Apex Court held as under in para 8 thereof (at page 2377 of the report): “8. In view of the consensus of the opinion which has emerged from various decisions of the High Courts appears to be that the power of the Magistrate should not be fettered either under Section 244 or under sub-section (6) of section 246 of the Cr.P.C. and full latitude should be given to the Magistrate to exercise the discretion to entertain a supplementary list. But as we have already added a word of caution that while accepting the supplementary list the Magistrate shall exercise its discretion judiciously for the advancement of the cause of justice and not to give a handle to the complainant to harass the accused.” It is to be kept in mind that the said application under section 246(6) was filed at the stage when the witnesses on behalf of the prosecution were being examined. The prosecution case was not closed and the case was not fixed for examination of the accused persons under section 313 of the Code. Section 246(6) of the Code reads thus: “The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re- 7 Patna High Court Cr.Misc. No.1114 of 2013 (4) dt.20-02-2013 7 / 8 examination (if any,); they shall be discharged.” The Magistrate, therefore, has discretion before he closes the trial to summon the witnesses if it advances the cause of justice. It is true that discretion so vested in the court should not be used fancifully but for good and valid reasons. The reasons would be to do complete justice between the parties. It is further seen from the record that along with the application the petitioner complainant had also filed attendance of the two remaining witnesses sought to be summoned for examination and cross examination. Reasons, therefor, have been set out in the application. It appears in an effort to substantial the charge three witnesses were sought to be examined. It is now settled by the Apex Court that discretion of the Magistrate is not fettered by any provision contained in the Code. The impugned order passed by the Magistrate records the reason(s) that remaining witnesses sought to be examined invoking 246 (6) of the code were not cited in the complaint or during the enquiry under section 202 of the Code. In view of ratio laid down in Sayeda Frahana Shamim (supra) those reasons assigned by the learned trial judge/court for rejecting the application, which has been affirmed by the revision court in the order dated 26.9.2012, are not sustainable in law. It 8 Patna High Court Cr.Misc. No.1114 of 2013 (4) dt.20-02-2013 8 / 8 appears to me that those witnesses were sought to be examined for bona fide reasons with a view to substantiate the allegation made in a complaint. In the light of discussions made above, I am satisfied that the order(s) passed by the learned trial court dated 19.6.2012 and affirmed by the learned revisional court by order dated 26.9.2012 are not sustainable in law and are fit to be quashed and
Decision
set aside. I order accordingly. Learned trial court shall now proceed to examine those witnesses for which a reasonable time/adjournment shall be granted to the petitioner-complainant who shall ensure their attendance and examination in chief within the time granted by the trial court. The application is allowed in the aforesaid terms. (Kishore Kumar Mandal, J) HR/-