2011 (8) TMI 1354 - SC - Indian Laws

Challenging the HC order - Direction for summon and examine court witness u/s 311 of the CrPC - HELD THAT - 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 case was lodged. After framing of charge and commencement of trial several witnesses were examined by the prosecution, who had been cross-examined 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.

Summary

Issues Involved:
1. Legality of summoning Smt. Ruchi Saxena as a court witness under Section 311 of the Code of Criminal Procedure, 1973.
2. Examination of the necessity and relevance of Smt. Ruchi Saxena's testimony in the bribery case.

Issue-wise Detailed Analysis:

1. Legality of summoning Smt. Ruchi Saxena as a court witness under Section 311 of the Code of Criminal Procedure, 1973:

The appeal challenges the judgment of the High Court which directed the Special Judge, Bareilly, to summon and examine Smt. Ruchi Saxena as a court witness under Section 311 of the Code of Criminal Procedure, 1973. The Supreme Court emphasized that Section 311 consists of two parts: the discretionary power of the court to examine any witness at any stage and the mandatory duty to examine a witness if their evidence is essential for the just decision of the case. The Court noted that this power should be exercised judicially and not arbitrarily or capriciously.

The High Court's direction to summon Smt. Ruchi Saxena was found to be without proper reasoning or examination of the necessity of her testimony. The Supreme Court held that the discretionary power under Section 311 should be exercised consistently with the provisions of the Code and the principles of criminal law. The High Court failed to consider the reasons assigned by the Special Judge for rejecting the application to summon Smt. Ruchi Saxena and did not specify how her testimony was essential for the just decision of the case.

2. Examination of the necessity and relevance of Smt. Ruchi Saxena's testimony in the bribery case:

The prosecution's case was that the accused demanded a bribe from the appellant to settle a matter related to the construction of boundaries on disputed property. Smt. Ruchi Saxena, who was residing in the USA, had no direct involvement in the bribery case either as a complainant or a witness to the trap arranged by the police. Her name was not listed as one of the prosecution witnesses in the charge-sheet. The High Court did not provide any reasoning as to why her testimony was necessary.

The Supreme Court referred to the decision in Sawal Das v. State of Bihar, where it was held that the court could decide not to examine certain witnesses if their testimony was not essential. Applying this principle, the Court found that Smt. Ruchi Saxena's testimony was not relevant to the bribery case, as she was neither present at the time of the bribe demand nor during the trap. The High Court's direction to examine her as a court witness was arbitrary and without examining the relevance or necessity of her evidence.

Conclusion:

The Supreme Court set aside the High Court's order directing the Special Judge to examine Smt. Ruchi Saxena as a court witness. The appeal was allowed, and the impugned judgment was deemed to have exercised the power under Section 311 arbitrarily. The appeal was accordingly disposed of.