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Judgment
SHALINI SINGH NAGPAL J.
The revision petition assails order dated 02.12.2022 of learned Sub Divisional Judicial Magistrate, Payal arising out of FIR No. 220 dated 30.07.2010 under Sections 406, 420, 120-B Indian Penal Code, Police Station Payal, District Ludhiana. Vide impugned order, petitioner’s application under Section 311 Cr.P.C. was dismissed by learned Sub Divisional Judicial Magistrate, Payal.
FIR was registered on complaint of the petitioner, who stated that accused Harminder Kaur, widow of Gurbachan Singh with the consent of her son Jagjit Singh executed sale agreement dated 16.04.2009 in his favour in respect of her land measuring 81 bigha 12 biswa situated in village Ghudani Khurd, Tehsil Payal, District Ludhiana besides her motor room, bore, passage etc. for sum of ₹10,00,000/- per acre. ₹1,20,00,000/- was received from him in cash, in the presence of accused Jagjit Singh and Gurdeep Singh @ Rana Singh. 14.10.2009 was the date fixed for execution of agreement. At the time of execution of agreement, it was conveyed that accused Jagjit Singh and Gurdeep Singh were the sellers of the land. Those two were in touch with the petitioner on phone and had completed all formalities regarding deal of the land. Though, petitioner was ready and willing for execution of sale deed, both of them, under a well planned conspiracy, in connivance with each other and to cheat the petitioner, got the land transferred from Harminder Kaur in favour of Jagjit Singh. When petitioner contacted them, they kept lingering the matter and refused to return the amount. Now, they were extending threats to eliminate him.
Investigation in the case was completed and final report was presented in the Court. When the case was at the stage of defence evidence and arguments, an application was moved under Section 311 Cr.P.C. by the petitioner for permission to bring on record following documents:
Judgment and decree sheet dated 11.04.2012 of learned Civil Judge (Junior Division) Ludhiana in civil suit No. CS/48 dated 20.04.2011 titled Hardev Singh Vs. Harminder Kaur;
Attested copies of order dated 11.12.2018 along with memo of costs dated 11.12.2018 of learned Civil Judge(Junior Division), Ludhiana in CM No. 35 dated 01.11.2012 and CM No. 41/2014 titled Hardev Singh Vs. Harminder Kaur;
Attested copies of judgment dated 23.07.2019 along wht memo of costs dated 23.07.2019 of learned Additional District Judge, Ludhiana in civil misc. Appeal/CMA No. 03 dated 26.02.2019 and CMA No. 02 dated 26.02.2019 titled Hardev Singh Vs. Harminder Kaur;
Attested copy of sale deed dated 27.08.2019 bearing document No. 2019-20/21/1/1966 executed by Harminder Kaur wife of late Gurbachan Singh through Local Commissioner in favour of Hardev Singh son of Krishan Singh in execution titled Hardev Singh Vs. Harminder Kaur.
Reply to the application was filed by respondents/accused. Learned trial Court, after hearing the rival parties, dismissed the application vide impugned order on the ground that trial was at fag end, fixed for arguments and complainant/petitioner did not produce the documents earlier despite ample opportunities.
Learned counsel for the petitioner submits that after registration of the FIR, petitioner filed civil suit against the accused persons to enforce agreement dated 16.04.2009. The civil suit was decreed by learned Civil Judge(Junior Division), Ludhiana. The application filed by the accused/Jagjit Singh and his mother Harminder Kaur, to set aside the ex-parte judgment and decree was dismissed by learned Civil Judge(Junior Division), Ludhiana. Appeals against the order dismissing the application for setting aside the ex-parte judgment and decree was dismissed by learned Additional District Judge, Ludhiana on 23.07.2019. Petitioner filed an execution petition, wherein learned Executing Court got registered sale deed of the property in his favour. When the challan was presented on 30.11.2010, the copies of the judgment, orders and decree sheets were not available with the petitioner and could not be made part of the challan. The documents were essential for just and proper adjudication of the case. Learned trial Court, without appreciating the importance of documents sought to be produced in additional evidence, dismissed the application under Section 311 Cr.P.C. without cogent reasons. None of the documents required formal proof. They were already in knowledge of respondents and production of the documents was necessary to bring all the true facts to the notice of the Court.
Learned counsel for the respondents has opposed the petition while supporting the impugned order passed by learned trial Court. He submits that the civil litigation had not attained finality as appeal against the judgment, decree and orders of the Civil Court was pending before this Court.
For ready reference, Section 311 Cr.P.C. is reproduced as under:
“Section 311 of the Code of Criminal Procedure
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 Sanhita, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”
In Natasha Singh Vs CBI, (2013) 5 SCC 741, Hon’ble Supreme Court observed, inter alia, as under:
"8.Section 311 Code of Criminal Procedure empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under Code of Criminal Procedure, or to summon any person as a witness, or to recall and re- examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, Code of Criminal Procedure has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. *****
15.The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application Under Section 311 Code of Criminal Procedure must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the Accused, or to cause serious prejudice to the defence of the Accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred Under Section 311 Code of Criminal Procedure must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this Section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."
Further in Rajaram Prasad Yadav Vs. State of Bihar and Another (22013) 14 SCC 461, Hon’ble Supreme Court culled out broad principles defining the scope of Section 311 Cr.P.C. as under:
i)Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
ii) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
ii) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
iv) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
v)The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
vi) The wide discretionary power should be exercised judiciously and not arbitrarily.
vii) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
viii) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
ix) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
x)Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
xi) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. xii) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. xiv) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.”
Petitioner, herein, lodged the FIR for prosecution of the respondents for having committed breach of the contract i.e. agreement to sell dated 16.04.2009, thus, cheating him of ₹1,20,00,000/-. FIR was registered on 30.07.2010 and final investigation report was presented on 31.11.2010. Thereafter, petitioner filed a civil suit for specific performance of the agreement to sell, which was decreed in his favour, ex parte. Application under Rule 9 rule 13 Civil Procedure Code filed by the respondents was refused. The order was upheld in appeal. In the execution petition filed, sale deed has been executed in favour of the petitioner. All these documents are sought to be brought on record in additional evidence. Although, widest discretionary powers are conferred on the Court under Section 311 Cr.P.C., the powers have to be exercised to meet the ends of justice. The discretion under Section 311 Cr.P.C. is required to be exercised by the Court on sound judicial principles, considering exigency of the situation, fair play and good sense. Before permitting evidence under Section 311 Cr.P.C., the Court is required to satisfy itself that the evidence sought to be led is, in every respect, essential to arrive at a just conclusion.
Although, the documents sought to be brought on record relate to the agreement to sell in question, which is the foundation of prosecution case, it cannot be ignored that all these documents came into existence after presentation of challan. Prosecution evidence had already been led in the trial and the application was moved when the trial was near conclusion, fixed for defence evidence and arguments. The documents which came into existence subsequent to presentation of challan, cannot be said to be essential for just decision of the case, as the criminal case has to be decided on the strength of evidence already led. The trial to succeed, requires proof beyond reasonable doubt whereas civil cases are decided on preponderance of probability. Findings in the criminal trial cannot be recorded on the result of litigation before the Civil Court particularly when the admitted position is that appeal against the judgment and decree dated 11.04.2012 in the suit for specific performance and the order in appeal is pending before this Court.
The powers under Section 311 Cr.P.C. can be exercised at any stage of the trial, even at fag end. However, since the civil litigation has not attained finality, it cannot be held that in the absence of the documents, the Court will not be able to determine the controversy effectively. Learned Sub Divisional Judicial Magistrate, Payal, therefore, rightly dismissed the application under Section 311 Cr.P.C. Since the documents sought to be proved are not found essential for just decision of the case, no interference by this Court is required.
The petition is dismissed.
Pending miscellaneous applications, if any, stand disposed of.