TMI Blog2011 (8) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... mined by the accused. The record nowhere shows that any complaint was filed by Smt. Ruchi Saxena against any of the accused making grievance that they had demanded any bribe amount from her. Smt. Ruchi Saxena had nothing to do with the bribe case either as a complainant or as a witness to the trap arranged by the police. Her name did not figure as one of the witnesses to be examined by the prosecution when charge-sheet was submitted in the court of learned Special Judge. The HC without specifying as to how Smt. Ruchi Saxena is a material witness or how her evidence is essential for just decision of the case, has directed the learned Special Judge to summon Smt. Ruchi Saxena as a court witness u/s 311 of the CrPC and to examine her. There is no manner of doubt that the power u/s 311 of the CrPC is exercised arbitrarily and, therefore, the impugned judgment is liable to be set aside. - J.M. Panchal and H.L. Gokhale, JJ. For Appellant: Jitendra Mohan Sharma, Adv. For Respondents: Ratnakar Dash, Sr. Adv., Alka Sinha, Anuvrat Sharma, Sukhendu Pal, Jitendra Singh and S.K. Sabharwal, Advs. JUDGMENT J.M. Panchal, J. 1. Leave granted. 2. This appeal, by gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endency of the appeal and the revision, the Respondent No. 2, i.e. Tajammul Hussain became Chairman of Nagar Palika in the year 2001. At that time, one Mr. Shamim Ahmad was Executive Officer of the Nagar Palika. After filing of suit Smt. Ruchi Saxena has gone to U.S.A. and presently she is residing there. However, the case instituted by her is being supervised and looked after by the Appellant Mr. Vijay Kumar, who is her father. 5. The case of the prosecution is that the Respondent No. 2 herein and the Executive Officer Mr. Shamim Ahmed demanded a sum of ₹ 2 lacs as bribe from the Appellant to settle the matter. Therefore, on December 5, 2001, the Appellant lodged a complaint before S.P. (Vigilance), Bareilly in respect of the same, pursuant to which a trap was arranged. On December 7, 2001 the Respondent No. 2 and Shamim Ahmed were arrested while receiving an amount of ₹ 50,000/- as part payment of total bribe amount of ₹ 2 lacs. On April 24, 2002, the miscellaneous appeal, filed by the Nagar Palika against the order granting interim injunction, was dismissed by the appellate court, and thereafter, the Appellant has constructed boundary wall over the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused Shamim Ahmed to recall the Appellant. On April 15, 2010, objections were filed on behalf of the prosecution to the three applications submitted by the accused. So far as application praying to summon Smt. Ruchi Saxena and examine her as a court witness was concerned, it was stated on behalf of the prosecution that the application was filed to delay the trial because the accused were fully aware of the fact that Smt. Ruchi Saxena was residing in America as a citizen of USA and it was difficult for her to appear as a witness. It was also pointed out by the prosecution that Smt. Ruchi Saxena had nothing to do with this case and neither she was examined under Section 161 of the Code of Criminal Procedure nor her name had been listed as one of the prosecution witnesses. What was maintained by the prosecution was that the application was filed with mala fide intention and accused had failed to indicate in the application as to what was the intention of their questioning Smt. Ruchi Saxena especially when no questions and/or suggestions were put to any of the witnesses examined by the prosecution with reference to her. 10. The learned Special Judge, by order dated April 23, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly, as wider the power, the greater is the necessity for application of the judicial mind. Whether to exercise the power or not would largely depend upon the facts and circumstances of each case. As is provided in the Section, power to summon any person as a witness can be exercised if the court forms an opinion that the examination of such a witness is essential for just decision of the case. 14. The record nowhere shows that any complaint was filed by Smt. Ruchi Saxena against any of the accused making grievance that they had demanded any bribe amount from her. The case of the prosecution is simple that in order to settle the matter relating to construction of boundaries on the disputed property, which is being supervised by the Appellant who is father of Smt. Ruchi Saxena, the Respondent No. 2 and another accused had demanded a sum of ₹ 2 lacs as bribe amount from the Appellant as a result of which the Appellant had filed complaint pursuant to which a trap was laid and accused were arrested while receiving an amount of ₹ 50,000/- as part payment of the bribe amount of ₹ 2 lacs. As is evident from the facts of the case after success of the trap, FIR in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. At this stage, it would be advantageous to refer to decision of this Court in Sawal Das v. State of Bihar AIR 1974 SC 778. In the said case the Appellant, his father and his mother were charged for murder of Appellant's wife. Immediately after the wife was pushed inside the room and her cries of Bachao Bachao came from inside the room, her children were heard crying and uttering words that their mother was either being killed or had been killed. But the children were not produced as witnesses in the trial court. There was some evidence in the case that the Appellant's children had refrained from revealing any facts against the Appellant or his father or his step-mother when they were questioned by the relations or by the police. The argument before this Court was that they should have been summoned as court witnesses for examination under Section 540 of the Code of Criminal Procedure, 1898, which is in pari materia with same as Section 311 of Code of Criminal Procedure, 1973. This Court has held that the court could have rightly decided in such circumstances not to examine the children under Section 540 of the Code of Criminal Procedure. If this is the approach to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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