Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 902 of 2015 with I.A. No. 4613 of 2015 1. Mahadeo Sahu @ Mahadeo Sao, S/o Late Kariman Sahu 2. Ashok Sahu @ Ashok Sao, S/o Mahadeo Sao 3. Anita Devi, W/o Ashok Sao 4. Panwa Devi, W/o Mahadeo Sao 5. Dashrath Kumar Sahu @ Dashrath Sao, S/o Mahadeo Sao, All are R/o Village- Jabra, P.O & P.S.-Simaria, Dist.-Chatra …… Petitioners Versus The State of Jharkhand …… Opposite Party --------- CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA --------- For the Petitioner : Mr. Abhay Kr. Chaturvedi, Advocate For the State : A.P.P. --------- 04/Dated:
07. 09/2015 I.A. No. 4613 of 2015 The instant interlocutory application has been filed under Section 5 of the Limitation Act for condonation of delay of 260 days in preferring the revision.
2. Learned counsel for the State has not raised any serious objection.
3. Considering the reasons assigned in the supporting affidavit, sufficient cause and reasonable explanation has been given for the delay, accordingly, the delay of 260 days is, hereby condoned and I.A. No. 4613 of 2015 stands allowed. Cr. Revision No. 902 of 2015 The present application has been filed impugning the order dated 07.08.2014 passed by Additional Sessions Judge Chatra in S.T. No. 56 of 2012, whereby the learned Additional Sessions Judge has allowed the petition under Section 311Cr.P.C and petition filed under Section 319 Cr.P.C.
2. Learned counsel for the petitioners has submitted that the independent witnesses namely, P.Ws. 1 to 9 have categorically stated that the deceased's sari got stuck and caught in the belt of the wheels of the mill due to which she sustained injuries on coming in contact with the spinning wheels. It is submitted that the court below has failed to appreciate that on completion of investigation, police had submitted the final form against the petitioners. That the sons of the deceased were not examined by the police under Section 161of the Cr.P.C but the informant has made out a case that he came to know from his grand sons, i.e. sons of the deceased, that all these petitioners had assaulted and pushed his daughter between the grinding wheels of the mill. It is argued that from the recital in the F.I.R., it would be evident -2- that the informant has categorically stated that he came to know of the complicity of these petitioners on confidential enquiry from the villagers who told him that these petitioners along with the husband of the deceased had pushed her on the grinding wheels. It is submitted that the learned trial Court has erred in law by allowing the petition under Section 311 of the Cr.P.C for examination of grand sons of the informant in the absence of any recital in F.I.R. regarding their presence at the place of occurrence. That the witnesses namely, P.Ws. 10, 12, 13, 14, 15, 16 and 17 are the family members of the deceased and are not eye witnesses to the occurrence, rather they are hearsay witnesses and their evidence cannot be considered in the absence of any other material evidence on record, for summoning the petitioners under Section 319 of the Cr.P.C. It is argued that provisions of Section 319 Cr.P.C can be invoked only when the court is satisfied that the accused summoned will, in all likelihood, be convicted for the offence but in the instant case there is no material evidence for recording such satisfaction. On the above grounds, it is submitted that the impugned order is fit to be set aside.
3. Mr. Pankaj Kumar, learned A.P.P. has submitted that there is no illegality or infirmity in the impugned order. That the court below, under Section 311 of the Cr.P.C, has wide discretionary power to examine any witness present in the court or to recall or re-examine any other witness at any stage of enquiry, trial or proceeding if it feels that the evidence is essential for the just decision of the case. The informant has deposed that his grand sons, i.e. sons of the deceased, were present and they had narrated the occurrence to the informant. In view of the deposition of the informant the sons of the deceased are material witnesses whose evidence is essential for the just decision of the case, as judgment cannot be passed on any inconclusive and speculative presentation of facts. That exercise of power under Section 311 of the Cr.P.C by the court is to arrive at the truth by examining material witness or documents. It is argued that the court has exercised the power under Section 319 Cr.P.C by recording its satisfaction on the basis of the evidence led during trial whereby the complicity of the petitioners is made out in the alleged crime. In support of the contention learned counsel for the State has referred to the decision in the case of Hardeep Singh Vrs. State of Punjab reported in 2014(3), SCC92 It is submitted that in the F.I.R the informant has stated that the petitioners had demanded Rs. 50,000/- in cash and a motorcycle as dowry. Due to non-fulfillment of the demand the deceased was harassed and tortured. That there is narration that a panchayati had been convened -3- wherein the petitioners had given an undertaking that they would keep the deceased properly. The informant's daughter (since deceased) had lodged a complaint with the police at Simaria Thana. That witnesses namely, i.e. P.Ws. 10 to 17 have stated that these petitioners were harassing and torturing the deceased and had threatened to kill her if she did not fulfill the demand of dowry, thus the impugned order does not suffer from any illegality, and the revision is fit to be dismissed.
4. Heard. Perused the impugned order. Evidently the court below has allowed the application under Section 311 of the Cr.P.C and later on by the same order, has also allowed the application under Section 319 for summoning the petitioners to face the trial alongwith the accused who are being tried. It is settled proposition of law that under Section 311 Cr.P.C the court has been vested with wide discretionary power to examine any person in attendance in court or to recall and re-examine any witness, at any stage of enquiry, trial or proceeding. The discretion so vested is to be exercised with caution as duty is cast on the court to record its satisfaction that such evidence is essential for the just decision of the case. The object and scope for invoking the power under Section 311 of the Cr.P.C is with the intent and purpose that the best available evidence is brought on record to enable the court to ascertain and arrive at the truth. The inherent power can be exercised by the court suo moto or on the application of either of the party on the court being satisfied that the evidence is necessary, in the attending facts and circumstances, of the case and it is not intended to fill up the lacuna in the prosecution case or is likely to prejudice the defence. The principles of fair play and fair opportunity to both the parties is to be adhered to, ensuring that neither of the parties are prejudiced.
5. It is evident from the F.I.R. that the informant has not stated that his grand sons had disclosed to him that the petitioners had pushed his daughter (since deceased) to the spinning wheels of the mill and she died due to the injuries sustained, thereof. However the court on the basis of the evidence of the informant led during the trial has been satisfied that the sons of the deceased were material witnesses and examination of the sons of the deceased i.e., the grandsons of the informant, was essential to arrive at the truth or to ascertain the actual state of affairs or the sequence of events leading to the death of the deceased. The court has exercised its discretionary power on the basis of the evidence moreover the summoning of the grandsons of the informant will not cause prejudice to the defence as they have the liberty to cross-examine the said witnesses. Thus in the given facts and circumstances the summoning of -4- the witnesses under Section 311 Cr.P.C cannot be faulted with as it does not suffer from any infirmity and illegality.
6. So far as the order allowing the application under Section 319 of the Cr.P.C is concerned, it is to be noted that the power of the court for invoking the provisions of Section 319 Cr.P.C has been elaborately dealt and discussed by the Supreme Court in the case of Hardeep Singh Vrs. State of Punjab (Supra). It is settled legal position that the court on the basis of the evidence led during the trial has the power to summon a person, who is not named in the F.I.R. or though named in F.I.R. has not been charge-sheeted or shown in column 2 of the charge-sheet to be tried with the accused who are facing the trial. The condition precedent for summoning such person is the satisfaction of the court and degree of such satisfaction is more than what is required at the time of framing charge rather such satisfaction is short of the proof required for convicting the accused. The court should be satisfied that if the evidence, led during trial against the person so summoned, remains unrebutted, it will in all likelihood lead to conviction of person so summoned to face the trial. Since the power is of wide amplitude, it casts a onerous responsibility on the court and has to be exercised by judicious application of mind.
7. In the backdrop of the settled legal position it would be evident from the testimony of the informant that he was informed about the involvement of the petitioners by his grandsons who have been summoned to be examined under Section 311 Cr.P.C. Evidently the evidence of the informant is of a hearsay witness which is not supported by any materials collected during investigation. It is amply clear that till the grandsons are not examined, the testimony of informant remains uncorroborated, consequently the summoning of the petitioners to face the trial only on the basis of evidence of a hearsay witness is not in consonance with the settled proposition of law. The evidence of the grandsons led during trial can be considered by the court whereafter the court can invoke the power under Section 319 Cr.P.C after recording its satisfaction. Therefore, at this juncture the summoning of the petitioners to face the trial only on the basis of evidence of a hearsay witness under Section 319 of the Cr.P.C is not sustainable, accordingly the order to that extent is hereby set aside.
8. With the said direction and observations the revision stands allowed in part. (Amitav K. Gupta, J.) Satayendra/