Tilak Raj and anr. vs State of Haryana

S.S. Grewal, J. (Oral)

This petition under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) relates to quashment of impugned First Information Report No. 299 dated 13784, PoliceStation Nissing and consequent proceedings taken thereunder including the order passed by the learned trial Court dated 31789, whereby, on the application moved on behalf of the prosecution under section 311 of the Code, the trial Court allowed summoning of 40 witnesses to prove the material facts in the case.

In brief, facts relevant for the disposal of the case as emerge from the impugned first information report, are, that on 1371984 Inspector Des Raj along with other police officials was busy in the investigation of another criminal case in village Dachar. He received a secret information that Tilak Raj (accused), who, was employed as a Conductor in the Haryana Roadways, after printing Haryana Roadways Tickets, supplied the same on payment to the passengers and after forging certificate of Haryana Education Board, he supplied the degrees (Sanad) to the needy people, and, if a raid was conducted then forged tickets of the Haryana Roadways and forged Sanads of the Education Board together with stamps and ink etc. could be recovered from him. On the basis of the said information, First Information Report was got registered at the Police Station. After completion of the investigation report under section 173 of the Code was submitted in the Court by the police on 91086, and, both the petitioners were challaned. The proceedings in this case have been adjourned from time to time in order to await the report of the Hand Writing Expert, which, was not filed along with the challan and ultimately on 26987 the State counsel made a statement that no such report was to be filed. On 2991987, the learned trial Magistrate framed the charge under Sections 420/416/467/468/471 and 412 of the Indian Penal Code against the petitioners, even though according to the petitioners, no prima facie case was made out against them. Thereafter, several adjournments were granted including 4 or 5 last opportunities to the prosecution to adduce its evidence, by the trial Court. It is further alleged that on 31789 in order to prolong the trial, application for summoning about 40 prosecution witnesses, under section 311 of the Code, was filed in the trial Court which committed grave error in summoning about 40 prosecution witnesses without proper application of mind.

The learned counsel for the parties were heard.

The learned counsel for the petitioners did not address any argument concerning the quashment of the impugned first information report, perusal whereof does not prima facie indicate that no criminal offence in respect of which the said F.I.R. was registered, has been made out. In these circumstances, impugned first information report cannot be legally quashed.

The main grievance of the petitioners is about the impugned order passed by the learned trial Court on 3171989. whereby, the trial Court allowed the application under section 311 of the Code moved on behalf of the prosecution for summoning 40 more prosecution witnesses, even though they were not cited in the list of witnesses attached with the challan under section 173 of the Code Perusal of the said order indicates that all these witnesses have been summoned in the interest of justice.

Scope of Section 311 of the Code was considered by the Division Bench of this Court in Sukhdev Singh v. The State of Punjab, 1982(2) Chandigarh Law Reporter 318, wherein it was held that Section 311 is expressed in the widest possible terms and the intention is not to limit the discretion of the trial Court in any way either to the stage at which the powers of the Code should be exercised, or with regard to the manner they should be exercised. The discretion is required to be exercised by the Court keeping in view the just decision of the case unmindful of the fact whether any party before it gains or loses from the exercise of such discretion under this section. There is no doubt that the object of the section is not to enable anyone or the other party to fill up the gaps of its case. The Section is not to be used to enable the prosecution either to improve its version at a later stage or enable it to repair the lacuna. The sole criterion in such a case should be whether the exercise of power under this Sec. is necessary in the interest of justice.

Reliance in Sukhdev Singh''s case (supra) was placed on the authority. of the apex Court in Jamatraj Kewalji Goyani v. State of Maharashtra, AIR 1968 S.C. 178, wherein dealing with Section 540 of the old Code (which is equivalent to section 311 of the Code) is was observed as under :

"As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly."

It was further observed

"There is, however, the other aspect, namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time and the Code of Criminal Procedure clearly so states."

It is pertinent to note that the prosecution evidence has not yet been closed in the trial Court and the accusedpetitioners would get ample opportunity to lead evidence in their defence if they so desire. Perusal of the impugned order does indicate that the learned trial Court has not specifically observed that the evidence sought to be produced by the prosecution, at this stage, appears to be essential for the just decision of the case. However, the trial Court has allowed the application in the interest of justice in view of the allegations against the petitioners that they have been indulging in issuance of bogus certificates of Haryana Education Board, as well as counter feit tickets of Haryana Roadways. Even though the learned trial Court had acted under first part of Section 311 of the Code, it was entirely within the discretion of the said Court to exercise its jurisdiction for summoning 40 more witnesses on behalf of the prosecution. The fact and circumstance of the case do not in any manner indicate that the said discretion has not been judicially exercised by the learned trial Court. The present petition in this Court too has been pending since 9th of November, 1989 and during this period the proceedings before the trial Court had been stayed. Thus, mere fact since the learned trial Magistrate had framed the charge against the petitioners on 29.9.87 and had granted several opport unities to the prosecution to produce its witnesses before allowing the application for summoning more prosecution witnesses under section 311 of the Code on 31789 would not be sufficient to hold that the right of speedy trial of the petitioners under Article 21 of the Constitution of India had been adversely affected or the Criminal proceedings against the petitioners are liable to be quashed on this score.

Authority in Labh Singh v. The State of Punjab, 1985(1) Recent Criminal Reports 272 , relied upon by the learned counsel for the petitioners is not applicable to the facts of the case in hand, inasmuch as application under section 311 of the Code was filed on behalf of the prosecution in the afore cited authority seeking production of additional evidence after the prosecution evidence had already been closed and the case had been adjourned for recording statement of the accused. Even otherwise the facts in Labh Singh''s case (supra) were entirely different inasmuch as the said case related to recovery under section 61 of the Excise Act whereas, the present case relates to more technical offences of cheating and forgery and sale of forged tickets and forged Sanads of Haryana Education Board. The aforesaid authority in Labh Singh''s case supra is not applicable to the facts of the present case, and, is clearly distinguishable.

The learned counsel for the petitioners further relied upon Single Bench authority of this Court in Govind Ram v. State of Haryana and anr., 1988(1) Recent Criminal Reports 148 , wherein proceedings under section 193 of the Indian Penal Code initiated in the year 1976, were quashed mainly on the ground that large number of hearings took place before the trial Court without any substantial progress from 131276 to 24379 and even after framing of the charge on 3785, no witness on behalf of the prosecution was examined even though 8 adjournments for this purpose were granted. The facts of the afore cited authority were entirely different from those in the case in hand and the authority in Govind Ram''s case (supra) too is not applicable to the facts and circumstances of the case in hand and is clearly distinguishable.

For the foregoing reasons, this petition is hereby dismissed. Both the parties through their counsel are directed to appear before the trial Court on 2091990. The trial Court is directed to dispose of this case expeditiously preferably within four months by giving short adjournments. Copy of this order be sent to the trial Court for strict compliance. Copy of this order be also sent to Sessions Judge, Karnal for information and necessary action. Record of this case, already received in this Court, be sent back forthwith, to the trial Court.