Vijay Kumar vs State Of U.P. & Anr

However, construction of wall was objected to, by the Nagar Palika, Aonla on the ground that Nagar 3 Palika is the owner of the said land. Therefore, Smt. Ruchi Saxena filed a suit No. 443 of 1999 in the Court of learned Civil Judge praying for permanent prohibitory injunction to restrain the Nagar Palika, Aonla and its servants, agents, etc. from putting up any obstruction in construction of wall to be carried out on the property in question. The learned Civil Judge, before whom the suit was pending, by order dated September 24, 1999, granted an interim order directing the Nagar Palika not to interfere with the possession of Smt. Ruchi Saxena of her agricultural land and not to obstruct construction of boundary wall. It may be stated that the Nagar Palika had filed an application on September 23, 1999 under Order VII Rule 11, Civil Procedure Code, to reject the plaint, as according to it, the plaint was not disclosing any cause of action. However, the said application was rejected by the learned Judge on September 23, 1999.

5. The case of the prosecution is that the respondent No. 2 herein and the Executive Officer Mr. Shamim Ahmed demanded a sum of Rs.2 lacs as bribe from 5 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 Rs.50,000/- as part payment of total bribe amount of Rs.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 in question.

6. After success of the trap, further investigation was carried out and on January 4, 2003 charge-sheet was submitted against the two accused persons, namely, the respondent No. 2 and Shamim Ahmed, who was then Executive Officer of the Nagar Palika, for alleged commission of offences punishable under 6 Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The prosecution also submitted a list of witnesses. The list did not indicate the name of Smt. Ruchi Saxena as one of the witnesses to be examined in the case because she was neither examined during the investigation of the complaint lodged by the appellant nor has any concern with the criminal case.

9. On April 2, 2010, three separate applications were filed by the accused. One application No. 103 Kha 8 was filed by accused Tajammul Hussain requesting the court to summon Smt. Ruchi Saxena as a court witness. Second application being No. 104 Kha was filed to recall the present appellant Vijay Kumar, PW-8 Anoop Kumar, PW-10 Lekh Pal Lala Ram and PW-11 Investigating Officer. Third application being No. 105 Kha was moved by the 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 9 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.

Therefore, feeling aggrieved, the respondent No. 2 filed a revision petition being Criminal Revision No. 1895 of 2010 before the High Court challenging the order by which his request to summon and examine Smt. Ruchi Saxena as a court witness was rejected.

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 Rs.2 lacs as bribe amount from the appellant as a result of which the appellant had 13 filed complaint pursuant to which a trap was laid and accused were arrested while receiving an amount of Rs.50,000/- as part payment of the bribe amount of Rs.2 lacs. As is evident from the facts of the case after success of the trap, FIR in the case was lodged by Mr. V.K. Bhardwaj, Inspector U.P. Vigilance Establishment. After framing of charge and commencement of trial several witnesses were examined by the prosecution, who had been cross-

10. The learned Special Judge, by order dated April 23, 2010, dismissed all the three applications.

11. The High Court has allowed the revision petition by judgment dated May 10, 2010 giving rise to the instant appeal.

17. For the foregoing reasons the appeal succeeds. The impugned order dated May 10, 2010, rendered by the learned Single Judge of the High Court of Judicature at Allahabad in Criminal Revision No. 1895 of 2010 directing the learned Special Judge to examine Smt. Ruchi Saxena as a court witness is hereby set aside.

18. The appeal accordingly stands disposed of.

August 03, 2011.