CRLR/61/2004 of VINOD JINDAL Vs STATE

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL REVISION No. 61/2004

Vinod Jindal

Versus

……… Revisionist

State of Uttaranchal

………. Respondent

Mr. Siddhartha Sah, Advocate, for the revisionist. Mr. Nandan Arya, AGA, for the State.

5th December, 2011

Hon’ble Servesh Kumar Gupta, J.

This criminal revision is directed against the order dated 28.4.2004, passed by the Special Judicial Magistrate, Dehradun, whereby the learned Magistrate, in exercise of powers under Section 311 CrPC, allowed the application moved by the prosecution and summoned the witness Shakti Swaroop Nigam.

2. Having heard the learned Counsel for the revisionist and learned AGA for the State, it appears that criminal case no. 1604/2003, State v. Ram Nath & Others, was being tried by the learned Magistrate for the offences punishable under Section 420, 467, 468, 471 read with Section 120B IPC, pertaining to PS Mussorrie. This case, in its background, relates to execution of sale deed of some property owned by Smt. Sheel Kumari Nigam, wife of Har Swaroop Nigam. An FIR was lodged on 27.2.1986 and after investigation, the chargesheet was submitted on 18.6.1987. Since then the case was being tried up after levelling the charges upon several accused persons. Examination-in-chief of Smt. Sheel Kumari Nigam was conducted on 19.4.2004, but her cross-examination was deferred. She was again examined on 28.4.2004 as PW3. Due to much protracting of the trial, the same is still pending. The

complainant/informant Har Swaroop Nigam (husband of Smt. Sheel Kumari Nigam) died during the pendency of the trial. His chief was recorded prior to Smt. Sheel Kumari Nigam, but his cross-examination could not be done. It is not clear before this Court as to why his cross-examination could not be done before the trial court.

3. After the death of Har Swaroop Nigam, an application was moved by the prosecution on 28.4.2004 to summon and examine his son Shakti Swaroop Nigam as witness. The learned Magistrate allowed the said application. The basis of satisfaction of the Magistrate was the statement of Smt. Sheel Kumari Nigam, who deposed before the trial court that the disputed property was under the consistent and persistent care of her husband (since deceased) as well as her son Shakti Swaroop Nigam (for short, Mr. Nigam). So, in the interest of justice, the examination of Mr. Nigam was essential. She also deposed that litigation between the parties pertaining to the said property was also being looked after by Mr. Nigam. On the basis of this statement, prosecution moved an application to summon Mr. Nigam. After hearing both the parties, the learned Magistrate conceded to the prayer of the prosecution and he found it appropriate to summon Mr. Nigam in exercise of the powers under Section 311 CrPC. This order has been challenged by way of this revision.

4. Learned Counsel on behalf of the revisionist, while disclosing the controversy between the parties, has stated that the disputed property was sold on 28.12.1985. He contended that Mr. Nigam was neither the buyer nor the seller. He was not even the holder of power of attorney. So, he was not material witness for adjudication of the

said criminal case. Learned Counsel relied upon the following two precedents:

(i) Raghuveer Prashad Sharma v. State of M.P. reported in 2009 (4) Crimes 315 (M.P.); reported in 2009 (4) Crimes 315 (M.P.);

(ii) Vijay Kumar v. State of U.P. & Another, reported in (2011) 8 SCC 136. in (2011) 8 SCC 136.

5. In both the aforementioned cases, person was summoned to depose as witness by the learned Magistrate under Section 311 CrPC, while the name of that person was neither in the FIR nor his statement was recorded under Section 161 CrPC. So, the Investigation Officer did not name that person as witness. In both the cases, Madhya Pradesh High Court (in the first case) and the Hon’ble Supreme Court (in the second case) were of the view that in order to determine the controversy, the summoning of such person was not proper when he was neither witness mentioned in the FIR, nor his statement was recorded under Section 161 CrPC.

6. Both the aforementioned precedents are not applicable in the present controversy for the reason that in both these cases, it has nowhere been expressed that absence of name of any person in the FIR or in the chargesheet is the sole anvil to determine the relevancy to summon that person under Section 311 CrPC. The context of controversy has to be analysed with close circumspection, and if that makes the Court feel to summon the person, then its powers under Section 311 CrPC cannot be put into stunt simply for the reason that the name of such witness was not mentioned in the FIR or in the chargesheet.

7. In case of Raghuveer Prashad Sharma, the application to summon particular witness, namely Dhanno, was moved by the prosecution after recording the statements of all the witnesses, while the evidence of that witness was not at all relevant for adjudication of the dispute. In that context, Madhya Pradesh High Court struck down the order passed by the Magistrate under Section 311 CrPC.

8. The second case of Vijay Kumar was criminal trial, involving allegation of bribe. During the course of trial, Smt. Ruchi Suxena was summoned as witness under Section 311 CrPC. The Hon’ble Apex Court was of the view that this lady Smt. Ruchi Suxena was not present when the bribe was demanded, or given by or to the accused. So, she was not necessary witness in the matter. In that context, the order passed by the Magistrate under Section 311 CrPC was struck down by the Hon’ble Apex Court.

9. In the present controversy, it is obvious that the trial has been dragged and protracted for such long period that after submission of the chargesheet way back in 1987, only one witness Smt. Sheel Kumari could be examined in April 2004, and even her cross-examination has been deferred time and again. It gives reflection to this Court that the cross-examination of the main witness Har Swaroop Nigam could have been protracted for one reason or the other (although the original file is not before this Court). Meanwhile, he died. It has specifically been deposed by Smt. Sheel Kumari that the property, in question, and the litigation pertaining to the said property were being looked after and taken care of by her late

husband Har Swaroop Nigam as well as her son Shakti Swaroop Nigam. So, it was in the interest of justice to summon Mr. Nigam after the death of his father (infomant). Learned Magistrate ordered exactly the same after hearing both the parties. This Court finds no illegality, irregularity or impropriety with the impugned order. The revision is bereft of merit and is liable to be dismissed.

10. For the reasons recorded above, the revision is hereby dismissed. Interim order dated 18.5.2004, passed by this Court, stands vacated.

11. Since this revision remained pending for almost seven years before this Court, and the dispute is more than two decades old, therefore, the learned Magistrate is directed to conclude the trial very expeditiously, preferably within eight months from today.

12. Registry is directed to inform the court concerned accordingly.

(Servesh Kumar Gupta, J.)

5.12.2011 Prabodh