Quashed

Manjit Kaur v. State of Punjab and Others

Punjab & Haryana HC1 Nov 2010CRM-M/9464/2010

Case brief

AI extract

What is this about?

HC quashed trial court order dismissing petitioner's application for additional examination of Oath Commissioner. Court held Section 311 Cr.P.C. empowers examination of essential evidence despite delay, directing magistrate to allow examination subject to costs.

What did the court decide?

Impugned order dated 15.02.2010 set aside; trial magistrate directed to permit examination of Oath Commissioner subject to Rs. 5,000 costs.

Manjit Kaur Vs State of Punjab and… — Civil Procedure and Limitation | Punjab & Haryana HC (2010)

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CRM No.M-9464 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM No.M-9464 of 2010 Date of Decision:01.11.2010

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Manjit Kaur ......Petitioner

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Versus

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State of Punjab and others .....Respondents

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CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.

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Present: Mr.Naresh Jain, Advocate, for the petitioner.

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Mr.Shilesh Gupta, Deputy Advocate General, Punjab, for respondent No.1-State.

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Mr.HPS Ishar, Advocate, for respondent Nos.2 to 5.

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Nemo for respondent No.6.

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MEHINDER SINGH SULLAR, J.(oral)

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The conspectus of the facts, culminating in the commencement, relevant for disposal of the present petition and emanating from the record, is that petitioner-Manjit Kaur filed a criminal complaint(Annexure P-1) against private respondent Nos.2 to 6. After taking into consideration the preliminary evidence, the trial Magistrate summoned them to face the trial, for the commission of offences punishable under Sections 420, 467, 468, 471 and 506 IPC. In pursuance of summoning order, the accused appeared in the trial Court.

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During the course of recording the pre-charge evidence, the trial Court did not allow the petitioner to examine Harsh Kumar Goyal, Advocate, Oath Commissioner, who attested the affidavit(Annexure P-2), mainly on the ground that the Oath Commissioner was not examined by the complainant in the preliminary evidence, the case is old and the High Court is pressing very hard to

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CRM No.M-9464 of 2010

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dispose of all old cases. Therefore, the pre-charge evidence of the complainant was closed by the order(Annexure P-3) of the Court. It necessitated the complainant to file an application for additional evidence for permission to examine the Oath Commissioner, as escalated under Section 311 Cr.P.C. in this regard.

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The respondents-accused contested the prayer of the petitioner and filed the reply stoutly denying the allegations contained in the application and prayed for its dismissal.

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The trial Magistrate dismissed the application of the petitioner for additional evidence by virtue of impugned order dated 15.02.2010(Annexure P-4). 5. The petitioner did not feel satisfied and filed the present petition for quashing the impugned order(Annexure P-4), invoking the provisions of Section 482 Cr.P.C.

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Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the present petition deserves to be accepted in this context.

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As is evident from the record that in the wake of complaint filed by the petitioner, the trial Magistrate has summoned the respondents-accused, for the commission of offences punishable under Sections 420, 467, 468, 471 and 506 IPC. The petitioner claimed that Kuldeep Singh-respondent No.5 executed an affidavit dated 17.04.2009(Annexure P-2), wherein he has admitted the forgery committed by the accused in the revenue record, in order to deprive the complainant from her legitimate share. The evidence sought to be produced was stated to be very essential to decide the real controversy between the parties.

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What is not disputed here is that Harsh Kumar Goyal, Advocate, Oath Commissioner attested the affidavit(Annexure P-2). The application for additional evidence of the petitioner was dismissed vide order(Annexure P-4),

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CRM No.M-9464 of 2010

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mainly on the ground that it will amount to fill-up the lacuna and will also amount to introduce new evidence. Therefore, the petitioner now cannot be permitted to examine him to introduce the new evidence and to reopen the case.

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Here, to me, the trial Magistrate fell in legal error in this respect. Section 311 Cr.P.C. postulates that any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. It is not a matter of dispute that the trial Magistrate did not record any reasons that the evidence of the Oath Commissioner sought to be examined by the complainant, was essential or not to the just decision of the case. Therefore, the contention of the learned counsel for the petitioner that the affidavit executed by Kuldeep Singh-respondent No.5, admitting the involvement of the accused in the commission of indicated heinous offences, is essential for the just decision of the case, has considerable force. The contrary argument of the learned counsel for the respondents that additional evidence cannot be allowed at this belated stage, is not only devoid of merit but misplaced as well.

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Meaning thereby, the Court has ample power to permit to lead additional evidence, notwithstanding the fact that the complainant did not examine the Oath Commissioner in her preliminary evidence. It cannot possibly be denied that the petitioner is somewhat negligent in summoning the Oath Commissioner, but that “ipso facto” is not a ground to dismiss her application, particularly when the other side can adequately be compensated with costs in this relevant connection. Therefore, to my mind, the impugned order cannot legally be sustained in the obtaining circumstances of the case.

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In the light of aforesaid reasons and without commenting further

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CRM No.M-9464 of 2010

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anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, the petition is hereby accepted. The impugned order (Annexure P-4) is set aside. The trial Magistrate is directed to grant one opportunity to the petitioner to examine the Oath Commissioner, to prove the affidavit(Annexure P-2) of Kuldeep Singh-respondent No.5. However, this would be subject to the payment of Rs.5,000/- as costs by the petitioner to the respondents.

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Needless to say that, nothing observed, here-in-above, would reflect, in any manner, on merits of the case, as the same has been so recorded for a limited purpose of deciding the instant petition.

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November 01, 2010 ( M EHINDER S INGH S ULLAR) seema JUDGE

Manjit Kaur v. State of Punjab and Others

Case brief

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Manjit Kaur v. State of Punjab and Others

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