CRM No. M-3199 of 2011 and other connected case 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision : November 30, 2011 CRM No. M-3199 of 2011 Randhir Kaur wife of Khazan Singh and another .... PETITIONERS Vs. State of Punjab ..... RESPONDENT CRM No. M-38284 of 2010 Gurjant Singh son of Bachan Singh .... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. Ashok Singla, Advocate, for the petitioners (In CRM No. M-3199 of 2011) for respondents No. 2 and 3 (In CRM No. M-38284 of 2010) Mr. Tajender K. Joshi, Advocate, for the petitioner (In CRM No. M-38284 of 2010) Mr. Vishal Munjal, Addl. A.G. Punjab. * * * AUGUSTINE GEORGE MASIH, J. (ORAL) By this order, I propose to dispose of CRM No. M-3199 of 2011 preferred by Randhir Kaur and Khazan Singh, accused in FIR No. 216 of 04.06.2002 and CRM No. M-38284 of 2010 preferred by Complainant-Gurjant Singh both challenging the order dated 08.09.2010 CRM No. M-3199 of 2011 and other connected case 2 passed by the learned Additional Chief Judicial Magistrate, Sangrur, partly allowing the application under Section 311 Cr.P.C. filed by the prosecution. Counsel for the accused contends that FIR was registered in the year 2002. There is no mention in the FIR with regard to the agreement to sell which is now stated to be in existence with regard to the land in question. The amount, which is alleged to have been settled between the parties, was `19,15,000/- as sale consideration and all through the case of the prosecution has been the same. But now, at a belated stage, a supplementary statement is stated to have been recorded by the Investigating Officer after passing of the order dated 23.08.2002 by the High Court directing the Investigating Officer to initiate settlement proceedings and if necessary, to refer the matter to Lok Adalat, Sangrur as it was basically a monetary dispute which is being sought to be projected as if the total consideration was `31,50,000/-. This supplementary statement, as a matter of fact, was not in existence but has been fabricated now and if the same would have been in existence, the same would have formed as a part of the challan in the case, which was presented on 17.01.2003 and the charge framed on 04.02.2003. All through these years, nothing has come on record to indicate the existence of the agreement to sell or that the total consideration was ` 31,50,000/-. This has been cooked up now as the prosecution evidence got concluded on 30.11.2009. The accused, in cross-examination, have been able to establish that the total sale consideration of ` 19,15,000/- stood paid to complainant and, therefore, no offence is made out against the accused. The present application has been moved under Section 311 Cr.P.C. on 10.12.2009 at this belated stage with an intention to fill up the lacuna, which cannot be permitted. He, accordingly, prays for the setting aside of CRM No. M-3199 of 2011 and other connected case 3 the impugned order dated 08.09.2010 partly allowing the application of the prosecution permitting examination of Gurjant Singh-complainant, as prayed for. Counsel for the complainant, challenging this very order, has stated that statement of Pawan Kumar Gupta, Notary Public, stands recorded but that was also inadvertently not placed on record. The Investigating Agency had checked the records of the Notary Public and a copy of entry No. 286 dated 03.07.2000 made in the register of Pawan Kumar Gupta, Notary Public, was taken in possession which pertains to the agreement to sell dated 03.07.2000. The evidence of Pawan Kumar Gupta, Notary Public, with regard to making of the entry in his register is also material to unfold the truth and, therefore, examination of Pawan Kumar Gupta should have been permitted by the trial Court and dismissal of the application qua this aspect is not in accordance with law. He, accordingly, prays that the application under Section 311 Cr. P.C. moved by the prosecution deserves to be allowed as a whole. I have heard the counsel for the parties and have gone through the records of the case. The powers of the Court under Section 311 Cr.P.C. are very wide. The Court can, at any stage of the 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 re-examine any person already examined wherever it is of the opinion that the evidence of such person appears to be essential for the just decision of the case. This power, therefore, is only circumscribed with the satisfaction of the Court and the primary aim and intention of the Court should be to find out the truth. In doing so, no fetters can be put in exercise of such powers of the CRM No. M-3199 of 2011 and other connected case 4 Court, however, it has to be kept in mind that none of the parties is prejudiced at the stage when the trial is on. The contention of the counsel for the accused that they have been prejudiced by permitting examination of Gurjant Singh-complainant with reference to his supplementary statement having been recorded by the Investigating Officer being not a part of the challan, cannot be accepted as the same is a question, which would be ultimately determined by the Court when his examination is conducted in Court and the accused will have a chance and opportunity to cross-examine him. Counsel for the petitioners, on instructions from S.I. Gurmail Singh, has stated that although the statement of Gurjant Singh, so recorded, does not bear any date but while referring to the zimini recorded by the Investigating Officer on 10.10.2002, he contends that it does indicate that supplementary statements of Gurjant Singh and Khazan Singh were recorded on the said date. The text of the supplementary statement has not been discussed herein as it may prejudice the right of the parties at this stage. The purpose being while exercising power under Section 311 Cr.P.C. to reach the truth, the exercise of powers by the trial Court qua permitting the examination of Gurjant Singh-complainant cannot be said to be not in consonance with the intent and purpose, for which the provisions so existed on the statute. As regards the contention of the counsel for the complainant that the records, especially the copy of entry No. 286 dated 03.07.2000 made in the register of Pawan Kumar Gupta, Notary Public, which pertains to the entry regarding agreement to sell dated 03.07.2000 executed between the complainant and the accused persons is essential for the just CRM No. M-3199 of 2011 and other connected case 5 decision of the case, suffice it to say that the same is not a part of the challan nor has the same ever been served on the accused. The learned trial Court, while considering this aspect, has taken into consideration all the relevant facts and has rightly rejected the application of the prosecution qua this aspect. On consideration of the impugned order dated 08.09.2010, I do not find any ambiguity in exercise of powers by the trial Court while deciding the application moved by the prosecution under Section 311 Cr.P.C. Finding no merit in both these petitions, the same stand dismissed. (AUGUSTINE GEORGE MASIH ) November 30, 2011 JUDGE pj CRM No. M-3199 of 2011 and other connected case 6