7 IN THE HON'BLE HIGH COURT OF CHHAmSGARH AT BILASPUR (L^-t? w.p.^em. NO. /2011 PETITIONER: o-^ ^>-^.vx> ^\^^.< •^^.•••^\^ y-s^' .-<^ '>-' RESPONDENTS: Bahur Singh Son of Jagdish Dhritlahare, aged 59 years, R/o. Village Thanoud, P.S. Anjora Chowki (Pulgaon), Tahsil and District Durg (C.G.) VERSUS ^" 1. State of Chhattisgarh, Through : The Secretary, Home Department, D.K.S. Bhawan Raipur [C.G.] 2. District Prosecution Officer, Durg, District Durg [C.G.] WRIT PETITION UNDER ARTICLE 227 OF CONSTITUTION OF INDIA 'x.\~. HIGH COURT OF CHHATTISGARH. BILASPUR SINGLEBENCH : HON'BLE SHRI PRASHANT KUMAR MISHRA. J. W.P. (227\ No. 1680 of 2011 PETITIONER BahurSingh. Versus RESPONDENTS State of ChhaUsgarh and another. Shri Manish Upadhyay, counsel tor petidoner. Shri Arvind Dubey, Panel Lawyer for the State on adwnce copy- ORALORDER (04/05/2011) Foltowing oral order <rf the Cwirt was passed by Prashant Kumar Mishra. J. Heard. (2) The petittener has assailed the legality and vaKdity of theorder passed by the Sessions Judge. Durg dismissing the revisfon petition preferred by the petiBoner which in tum was preferred against the trial Magistrate's order dated 12/11/2010 allowing prosecufion's applteatton under Section 311 of Cr.P.C. for summoning two wibiesses namely Shri U.K. Verma, A.S.I. Poltee Ou^aost, Anjora and Shri Ramakant Sharma, Statton House Officer. (3) Leamed counsel for the petitioner would submit that the leamal Magistrate has committed serious error of law by allowing the applicatfon inasmuch as the said application was filed to fulfill the lacuna in the prosecution case and in any case such witnesses whose names are not mentioned in the list of witnesses submitted by the prosecution can not be summoned in exercise dt power under Sectipn 311 of CrP.C. >,-,.;'y'"'s"'^\ ff\,.Sth ''%» 1 ^-—y ^•t»:^,.;W' r^ ^ '-; A' (4) Learned Panel Lawyer appearing for the State has opposed the prayer made in the wrtt petition. (5) On perusal of the applfcaBon under Section 311 of Cr.P.C. fited by the pTosecuUon (Annexure P/3) and the order passed bythe teamed Magistrate as well as the revisional order passed by the Sessions Judge tt is reveated that the witnesses who have been summoned after allowing the application under Section 311 of CrP.C. are material witnesses and their non- examination wouM definitety prejudice and may even proove fatal to Uie prosecutton case. Shri U.K. Verma is the person who has taken down the F.l.R. and Shri Ramakant Sharma is the person who has conducted investigation. Name of Shri Ramakant Sharma was already mentioned inthe list of witnesses however, it appeare, name of Shri U.K. Vsrma vras inadvertently left to be mentfoned in the list of witnesses. (6) It is in the interest of justice that the prosecution shoutel be granted sufficient and proper opportunity to prove its case and that if by any inadvertence or mistake any witness has not been examined, jurisdkrtion and powers under Section 311 of Cr.P.C. can be exercised. In the present case the sakl exereise ofjurisdiction does not appear to be witft a wew to altow the prosecuUon to fill up its lacuna. (7) It is ateo to be kept in mind that the present is a petition under Article 227 of ffie Constitution of India, wherein the scope of interference is extremely limited as held by the Hon'Ue Supreme Court in the matter <rf Ceffna Coe/ho Perefra (Ms) and otters vs. Ulhas Maha&a/esfwar Kholkar ancf offiers, (2010) 1 SCC 217. Relevant paragraphs 30, 31 and 32 ofthe report are extracted hereunder: sis- ..i»£..;i. / I;ss^ j .,,?.-- JJ "-s^ "30. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta, (1975) 1 SCC 858 this Court heki- (SCC p. 865, jnara 7) "7. ... 77» H<gft Court cannof OT gu/se o/ exemsing Ss .(yrfscfcfibn uncfer Artfcfe 227 comert itself Wo a court of appeal whw the fesrfsfeftff®has not confefied a righi of appea/ and made ihe decisbn of fte sufeoraSnate cwrt CT' Wiunal ffnal on fecfe." 31. In State v. Navjot SafxSw. (2003) 6 SCC 641:2003 SCC (Cri) 1545 Siis Cowtexf^smed (fte poweroffheh^)h Cowtiimter ArBcle 227 thus: (SCC pp. 656-57, pa/a 28) "28. Thus thelewis (ftal/Wfcte 227ofthe ConsttWon of /ndfa glves the His)h Court ttw power of supsmtendence over aV couris and (ribunafe thRwghout the temtories in refefibn to wNcft ff exerefses JwfscScSon. This JwiscSctton cannot be Krmted or feSered by any Act of the Stete Legislatuie. The wpeiwswy jwiscSctton extends to ke^wig the si&wvSnate tribwials wiVwn the ttmits af Vieir authorifyandtoseeingttstttTeyobeythelsM. 77»powws unc(er Artfcfe 227 are mcte and can &e usect to me^ ff» encte ofjusfce. They can be used fo /nfertsre eveo iwfft an (nferibcufoy orefer. Howewer thepower imdw AtScle 227 is a disciettonary power and it is dffifcuff to aWfeute to an oiderofVieHigh Cwiri, siich a sowce of fiower, when the Hlgh Cowt itself ctoes mt in twns pwpat to exwcise any such dtecrefona/y pot f. tt is s^Sed law ffiat ffivs pawer crf jixScial styjetmtendenw, (mcfer Arfcfe 227, must be exeicised sparingly and only to heep suborefinate oourts and tribtinals mUiin the fcouncfe oftlwir atMmr y and notto co»rec?ffrere effora. Furifter, where tbe stefcrtB tons ffw exercfse of fevistonal powers it woukl iwfwfe very excepffona/ drcumsfances to wanrawrf mterfsnsoce undl»' ArScle 227 of the Con^tuSon of lixSa sinw ff»power of superintendeme was not memt to circimwent statutory law. K Is settted law that the jwiscScHon yoder AtScte 227 gS'i^@3i'SS?^3 --...). ^- •I /o coufcf not be exeicised 'as the ctoak of an waeal in disfluse'." 32. The afowsakl tm> dwiaons and few other cfedsfons, namety, Chandavaskar S8a Ratna Rao v. AshaMa S. Gyram, (1986) 4 SCC 447, Stateof MaharasMia v. MiSnd. {2W1) 1 SCC 4 ; 200^ SCC (L&S) 117 ancf Ranjeet Sinsfti v. Raw Prafcash, (2004) 3 SCC 682 came to be consfefered by ffvs Court in Shamshad Ahmad v. Filak Rsy Bsgaj, (2008) 9 SCC 1 and ffws Cowthekl: (TilakRajcase, (2W)8) 9 SCC 1, SCCpp. 10-11, para 38) '38. TTwugh pawefsofa Hi^h Cowt wwier AtVcles 226 and 227 are iwy vwfe and extensve awr all couris afld tribunals ffwoughotrf the tenitories In pelaSwi to whteh tt exercfses /UHsdfcdon, such pcwws must be exwawd wiWn (he dmfts offew. The paww is superwsoy fr»nah»e. TheHighCourtdoesnotactasawtffttrfappee/oracourt of ermr. K can neiffiier rewew nor nsqoprecfate. my rewe©h e ewctence upon wtt<rf) d^emilnaSon of a suboRSnate court or inferior tribunal pwports to be faasecf or to coiiect errors of ^t or ewen <rf law and to sito^itirie its awn deciston for (hsrf of (fte mferibr oourf or (ribuna/. The pawers ans reqiu/red to be exenssed most sparinsfty and onty in appropriate cases in orefer to to^> tbe sufconsinate courts and inferior tribwials within (fte Bmits of /aw." (8) Applying the principles lakklown by the Hon'ble Supreme Court in the matter of Cellna Coelho Perelra (Ms) and othere vs. t/ffias Mahab^eshwar Kftoffrar ancf offiere (supra) to ttie facts (rf the present case, this Court does not find any such error committed by the trial Court as Well as by the revisional Court while altowng the application under SecBon 311 of CrP.C. which warrants interference in exercise of povrors under Article 227 of the Constitutton of India. s -,\ ' 'i -5 (9) As a consequence, the instant petidon under Articte 227 of the Constitution of India fails and is hereby dismissed. SA"\.^^svlt& ^ss^ ¥<^attl3^e T^~ ||Ti-ir :.::3»':'^mSa:3S^aSSBfi!^? vases. ^^a^ssssasi ..^-