VIJAY KUMARversusSTATE OF U.P. AND ORS.

                      [2011] 11 S.C.R. 893


                         VIJAY KUMAR                                   A
                                 v.
                  STATE OF U.P. AND ORS.
             (Criminal Appeal No. 1345 of 2011)
                       AUGUST 03, 2011
                                                                       B
        [J.M. PANCHAL AND H.L. GOKHALE, JJ.]

       Code of Criminal Procedure, 1973 - s.311 -
 Summoning of witness in a bribe case - 'R', the daughter of
 appellant, owned a piece of agricultural land - To avoid              C
 encroachment on the land, 'R' started constructing boundary
 wall thereon - However, the construction was objected to, by
 the Nagar Pa/ika whereafter 'R' filed suit to restrain the Nagar
 Palika and its servants, agents, etc. from putting up any
 obstruction in construction of the wall - After filing of the suit,   o
 'R' went to U. S.A and the case instituted by her was supervised
 and looked after by the appellant - Prosecution case that in
 order to settle the matter, respondent No. 2 and 'S', the
 Chairman and Executive Officer respectively of the Nagar
 Palika demanded bribe from appellant whereupon appellant              E
 filed complaint pursuant to which a trap was laid and the said
 two accused were arrested while receiving part payment of the
 bribe amount- Trial against the two accused uls. 7 ands. 13(2)
rlw s.13(1)(d) of Prevention of Corruption Act - Respondent
no.2 filed application uls.311 CrPC requesting the Court to            F
summon 'R' as a court witness - Application dismissed by trial
court - Order set aside by High Court - On appeal, held:
Power u/s.311 CrPC should be exercised judicially for reasons
stated by the Court and not arbitrarily or capriciously - As is
provided in the Section, power to summon any person as a
witness can be exercised if the court forms an opinion that the        G
examination of such a witness is essential for just decision
of the case - In the instant case, 'R' had nothing to do with
the bribe case either as a complainant or as a witness to the

                               893                                     H
    894     SUPREME COURT REPORTS               [2011] 11 S.C.R.


A trap arranged by the police - 'R' was also not present at the
   time when the bribe was allegedly demanded - Her name did
  not figure as one of the witnesses to be examined by the
  prosecution when charge-sheet was submitted in the trial court
  - To prove the bribe case it was not necessary for the court
B to examine 'R' as a courl witness - Neither respondent No.2
  in his application nor the High court in the impugned
  judgment specified the reason as to why and how examination
  of 'R' as a court witness was necessary- Power uls.311 CrPC
   was exercised by the High Court arbitrarily and, therefore, the
c order rendered by it directing the trial cowt to examine 'R' as
  a court witness set aside - Prevention of Corruption Act, 1988
  - s. 7 and s.13(2) rlw s.13(1)(d).

       Code of Criminal Procedure, 19 73 - s. 311 -
  Discretionary power under - Scope and ambit of - Held:
D Though s. 311 confers vast discretion upon the court and is ·
  expressed in the widest possible terms, the discretionary
  power under the said Section can be invoked only for the ends
  of justice - Discretionary power should be exercised
  consistently with the provisions of the Code and the principles
E of criminal law - The discretionary power conferred uls. 311
  has to be exercised judicially for reasons stated by the Court
  and not arbitrarily or capriciously.

        'R', the daughter of appellant, owned a piece of
F agricultural land. To avoid encroachment on the land, 'R'
  started constructing boundary wall thereon. However,
  the construction was objected to, by the Nagar Palika
  whereafter 'R' filed suit praying for permanent prohibitory
  injunction to restrain the Nagar Palika and its servants,
G agents, etc. from putting up any obstruction in
  construction of the wall. During pendency of the suit,
  respondent No.2, became Chairman of Nagar Palika. After
  filing of the- suit, 'R' went to U.S.A and the case instituted
  by her was supervised and looked after by the appellant.

H
    VIJAY KUMAR v. STATE OF U.P. AND ORS.            895


     The prosecution case is that in order to settle the    A
matter relating to construction of wall on the property,
which was being supervised by the appellant, the
respondent No. 2 and 'S', the Executive Officer of the
Nagar Palika demanded a sum of Rs.2 lacs as bribe
amount from the appellant as a result of which the          B
appellant had filed complaint pursuant to which a trap
was laid and the said two accused were arrested while
receiving an amount of Rs.50,000/- as part payment of the
bribe amount of Rs.2 lacs. After success of the trap,
further investigation was carried out and charge-sheet      c
was submitted against the two accused persons, for
alleged commission of offences punishable under
Section 7 and Section 13(2) r/w Section 13(1)(d) of the
Prevention of Corruption Act, 1988. The trial of the case
was conducted before the Special Judge. Subsequently,       0
respondent no.2 filed application under section 311 of
CrPC requesting the Court to summon 'R' as a court
witness. The Special Judge dismissed the application.
Aggrieved, respondent No.2 filed revision petition before
the High Court challenging the order by which his request   E
to summon and examine 'R' as a court witness was
rejected. The High Court allowed the revision petition.
Hence the present appeal.

    Allowing the appeal, the Court
                                                            F
     HELD:1.1. Section 311 of CrPC consists of two parts,
viz., (1) giving discretion to the court to examine the
witness at any stage; and (2) the mandatory portion
which compells a court to examine a witness if his
evidence appears to be essential to the just decision of G
the case. The Section enables and in certain
circumstances, imposes on the Court the duty of
summoning witnesses who would have been otherwise
brought before the Court. This Section confers a wide
discretion on the Court to act as the exigencies of justice
                                                            H
   896     SUPREME COURT REPORTS             [2011] 11 S.C.R.


A require. The power of the Court under Section 165 of the
  Evidence Act is complementary to its power under this
  Section. These two sections between them confer
  jurisdiction on the Court to act in aid of justice. There is
  no manner of doubt that the power under Section 311 of
B Code of Criminal Procedure is a vast one. This power can
  be exercised at any stage of the trial. Such a power
  should be exercised provided the evidence which may
  be tendered by a witness is germane to the issue
  involved, or if proper evidence is not adduced or relevant
c material is not brought on record due to any inadvertence.
  Power under Section 311 should be exercised for the just
  decision of the case. The wide discretion conferred on
  the court to summon a witness must be exercised
  judicially, as wider the power, the greater is the necessity
  for application of the judicial mind. Whether to exercise
0
  the power or not would largely depend upon the facts
  and circumstances of each case. As is provided in the
  Section, power to summon any person as a witness can
  be exercised if the court forms an opinion that the
  examination of such a witness is essential for just
E decision of the case. [Para 13) [903-A-F]

       1.2. In the instant case, the record nowhere shows
  that any complaint was filed by 'R' against any of the
  accused making grievance that they had demanded any
F bribe amount from her. After framing of charge rnd
  commencement of trial, several witnesses were
  examined by the prosecution, who had been crossH
  examined by the accused. 'R' had nothing to do with the
  bribe case either as a complainant or as a witness to the
G 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 Special
  Judge. The High Court without specifying as to how 'R'
  is a material witness or how her evidence is essential for
H just decision of the case, directed the Special Judge to
     VIJAY KUMAR v. STATE OF U.P. AND ORS.           897


summon 'R' as a court witness under Section 311 of the      A
Code of Criminal Procedure and to examine her. Though
Section 311 confers vast discretion upon the court and
is expressed in the widest possible terms, the
discretionary power under the said Section can be
invoked only for the ends of justice. Discretionary power   B
should be exercised consistently with the provisions of
the Code and the principles of criminal law. The
discretionary power conferred under Section 311 has to
be exercised judicially for reasons stated by the Court
and not arbitrarily or capriciously. Before directing the   c
Special Judge to examine 'R' as a court witness, the High
Court did not examine the reasons assigned by the
Special Judge as to why it was not necessary to examine
her as a court witness and gave the impugned direction
without assigning any reason. The High Court failed to
                                                            D
consider the case of the prosecution that the application
was submitted by the respondent No. 2 only to delay the
trial and no case was made out by the respondent No. 2
as to why direction should be given to exam.ine 'R' as a
court witness. In a bribe case w_hat is required to be      E
proved by the prosecution is that there was a demand of
bribe by the accused from the complainant and that
pursuant to the said demand, bribe amount was accepted
by the accused. To prove this case it was not necessary
for the court to examine 'R' as a court witness. Neither
the respondent No. 2 in his application nor the court in    F
the impugned judgment specified the reason as to why
and how examination of 'R' as a court witness is
necessary. [Paras 14, 15] [903-G-H; 904-A-B]

     1.3. This Court fails to understand as to how the      G
evidence of 'R' was relevant in the instant case and why
direction should be given to examine her as a court
witness, as she was neither present at the time when the
bribe was demanded or even at the time when the trap
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    898      SUPREME COURT REPORTS               [2011) 11 S.C.R


A   was arranged and laid. Without examining the relevance
    of evidence, which may be tendered by 'R' or the
    necessity of examining her as          a
                                           court witness or
    examining the question of prejudice if at all which is likely
    to be caused to the defence, if she is not examined, the
s   High Court directed the Special Judge to examine 'R' as
    a court witness. There is no manner of doubt that the
    power under Section 311 of the Code of Criminal
    Procedure, 1973 was exercised arbitrarily and, therefore,
    the impugned order rendered by the Single Judge of the
c   High Court in Criminal Revision directing the Special
    Judge to examine 'R' as a court witness is hereby set
    aside. [Paras 16, 17] [905-C-H; 906-A-D]

       Sawa/ Das vs. State of Bihar AIR 1974 SC 778: 1974 (3)
    SCR 74 - relied on.
D
                         Case Law Reference:
          1974 (3) SCR 74            relied on           Para '16

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
E   No. 1345 of 2011.

         From the Judgment & Order dated 10.5.2010 of the High
    Court of Judicature at Allahabad in Criminal Reivision No. 1895
    of 2010.
F         Jitendra Mohan Sharma for the Appellant.

         Ratnakar Dash, Alka Sinha, Anuvrat Sharma, Sukhendu
    Pal, Jetendra Singh, S.K. Sabharwal for the Respondents.

          The Judgment of the Court was delivered by
G
          J.M. PANCHAL, J. 1. Leave granted.

        2. This appeal, by grant of special leave, is directed
    against judgment dated May 10, 2010, rendered by learned
H
     VIJAY KUMAR v. STATE OF U.P. AND ORS.                 899
               [J.M. PANCHAL, J.]

Single Judge of High Court of Judicature at Allahabad in          A
Criminal Revision No. 1895 of 2010, by which the order dated
April 23, 2010, passed by learned Special Judge, Bareilly
below Application No. 103 Kha in Special Case No. 2 of 2003
refusing to summon Smt. Ruchi Saxena, staying in U.S.A., as
a court witness, is set aside and the learned Special Judge,      B
Bareilly is directed to summon and examine Smt. Ruchi Saxena
as court witness under Section 311 of the Code of Criminal
Procedure, 1973.

     3. From the record of the case it is evident that Smt. Ruchi
Saxena, resident of village Aonla, District Bareilly, U.P., is C
owner of an agricultural piece of land. She is settled in U.S.A.
Her property is being looked after by the appellant Mr. Vijay
Kumar, who is her father. To avoid encroachment on the land
Smt. Ruchi Saxena started constructing boundary wall on the
agricultural land belonging to her. However, construction of wall D
was objected to, by the Nagar Palika, Aonla on the ground that
Nagar 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. E
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 F
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 G
said application was rejected by the learned Judge on
September 23, 1999.

     4. Feeling aggrieved by the order of injunction, Nagar
Palika filed miscellaneous appeal under Order 43 Rule 1 CPC
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    900     SUPREME COURT REPORTS                 [2011] 11 S.C.R.


A as well as a civil revision application under Section 115 of the
  Civil Procedure Code against order rejecting application filed
  under Order VII Rule 11 of the Civil Procedure Code before the
  High Court. During the pendency of the appeal and the revision,
  the respondent No. 2, i.e. Tajammul Hussain became Chairman
8 of Nagar Palika in the year 2001. At that time, one Mr. Shamim
  Ahmad was Executive Officer of the Nagar Palika. After filing
  of suit Smt. Ruchi Saxena has gone to U.S.A. and presently
  she is residing there. However, the case instituted by her is
  being supervised and looked after by the appellant Mr. Vijay
C Kumar, who is her father.

       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 the appellant to
  settle the matter. Therefore, on December 5, 2001, the
D 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
E 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.

F      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 Sections 7, 13(2) read with
G 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
H the appellant nor has any concern with the criminal case.
      VIJAY KUMAR v. STATE OF U.P. AND ORS.                   901
                [J.M. PANCHAL, J.]

     7. On December 16, 2006 an application dated February            A
26, 2004 was moved on behalf of Smt. Ruchi Saxena in the
suit filed by her before the trial court seeking permission to
withdraw the suit with liberty to file fresh suit in case there was
fresh cause of action. The said application was allowed and
the record shows that the learned counsel for Nagar Palika was        B
also present at the time when the said order was passed.

      8. After framing of necessary charges against the two
accused the trial of the case was conducted before the learned
Special Judge, Bareilly in Special Case No. 2 of 2003. During
the trial the prosecution examined witnesses. They were cross- C
examined on behalf of the accused. On March 18, 2010 the
prosecution submitted certified copies of the orders passed by
the competent court and the High Court in respect of civil
litigation. The learned Special Judge, by an order dated March
22, 2010, allowed the papers to be admitted in evidence, by D
awarding cost of Rs.500/- to each of the accused and closed
the evidence on behalf of the prosecution. Thereafter, the case
was fixed for April 2, 2010 for statements of the accused to be
recorded under Section 313 of the Code of Criminal Procedure
and for defence evidence, if any.                               E

      9. On April 2, 2010, three separate applications were filed
by the accused. One application No. 103 Kha was filed by
accused Tajammul Hussain requesting the court to summon
Smt. Ruchi Saxena as a court witness. Second application F
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 G
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 H




                                                      r
    902      SUPREME COURT REPORTS                  [2011) 11 S.C.R.


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
    examined under Section 161 of the Code of Criminal Procedure
    nor her name had been listed as one of the prosecution
B   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
c   witnesses examined by the prosecution with reference to her.

         10. The learned Special Judge, by order dated April 23,
    2010, dismissed all the three applications. Therefore, feeling
    aggrieved, the respondent No. 2 filed a revision petition being
    Criminal Revision No. 1895 of 2010 before the High Court
D   challenging the order by which his request to summon and
    examine Smt. Ruchi Saxena as a court witness was rejected.

        11. The High Court has allowed the revision petition by
    judgment dated May 10, 2010 giving rise to the instant appeal.
E
        12. This Court has heard the learned counsel for the parties
    and considered the documents forming part of the appeal.

        13. Section 311 of the Code of Criminal Procedure reads
    as under: -
F
          "311. Power to summon material witness, or examine
          person present. - Any Court may, at any stage of any
          inquicy, trial or other proceeding under this Code, summon
          any person as a witness, or examine any person in
G         attendance, though not summoned as a witness, or recall
          and re-examine 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."
H
     VIJAY KUMAR v. STATE OF U.P. AND ORS.                      903
               [J.M. PANCHAi,, J.]

      This Section consists of two parts, viz., (1) giving discretion   A
to the court to examine the witness at any stage; and (2) the
mandatory portion which compells a court to examine a witness
if his evidence appears to be essential to the just decision of
the case. The Section enables and in certain circumstances,
imposes on the Court the duty of summoning witnesses who                B
would have been otherwise brought before the Court. This
Section confers a wide discretion on the Court to act as the
exigencies of justice require. The power of the Court under
Section 165 of the Evidence Act is complementary to its power
under this Section. These two sections between them confer              c
jurisdiction on the Court to act in aid of justice. There is no
manner of doubt that the power under Section 311 of Code of
Criminal Procedure is a vast one. This power can be exercised
at any stage of the trial. Such a power should be exercised
provided the evidence which may be tendered by a witness is             D
germane to the issue involved, or if proper evidence is not
adduced or relevant material is not brought on record due to
any in.advertence. It hardly needs to be emphasized that power
under Section 311 should be exercised for the just decision of
the case. The wide discretion conferred on the court to summon
a witness must be exercised judicially, as wider the power, the         E
greater is the necessity for application of the judicial mind.
Whether to exercise the power or not would largely depend
upon the facts and circumstances of each case. As is provided
in the Section, power to summon any person as a witness can
be ex~rcised if the court forms an opinion that the examination         F
of such a witness is essential for just decision of the case.·

     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.             G
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                 H
    904     SUPREME COURT REPORTS                (2011] 11 S.C.R.


A 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 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
B 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-examined by the accused. Smt. Ruchi Saxena
  had nothing to do with the bribe case either as a complainant
c 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 High Court 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
0
  the learned Special Judge to summon Smt. Ruchi Saxena as
  a court witness under Section 311 of the Code of Criminal
  Procedure and to examine her. Though Section 311 confers
  vast discretion upon the court and is expressed in the widest
E possible terms, the discretionary power under the said Section
  can be invoked only for the ends of justice. Discretionary power
  should be exercised consistently with the provisions of the
  Code and the principles of criminal law. The discretionary power
  conferred under Section 311 has to be exercised judicially for
  reasons stated by the Court and not arbitrarily or capriciously.
F Before directing the learned Special Judge to examine. Smt.
  Ruchi Saxena as a court witness, the High Court did not
  examine the reasons assigned by the learned Special Judge
  as to why it was not necessary to examine her as a court
  witness and has given the impugned direction without assigning
G any reason. The High Court failed to consider the case of the
  prosecution that the application was submitted by the
  respondent No. 2 only to delay the trial and no case was made
  out by the respondent No. 2 as to why direction should be given
  to examine Smt. Ruchi Saxena as a court witness. In a bribe
H case what is required to be proved by the prosecution is that
     VIJAY KUMAR v. STATE OF U.P. AND ORS.                 905
               [J.M. PANCHAL, J.]

there was a demand of bribe by the accused from the                A
complainant and that pursuant to the said demand, bribe
amount was accepted by the accused. To.prove this case it was
not necessary for the court to examine Smt. Ruchi Saxena as
a court witness.
                                                                   B
     15. Neither the respondent No. 2 in his application nor the
court in the impugned judgment has specified the reason as
to why and how examination of Smt. Ruchi Saxena as a court
witness is necessary.

      16. At this stage, it would be advantageous to refer to C
decision of this Court in Sawa/ Das vs. State of Bihar AIR 1974
SC 778. In the said case the appellant, his father and his mother
were charged for murder of appellant's wife. Immediately after
the wife was pushed inside the room and her cries of "Bachao
Bachao" came from inside the room, her children were heard D
crying and uttering words that their mother was either being
killed or had been killed. But the children were not produced
as witnesses in the trial court. There was some evidence in the
case that the appellant's children had refrained from revealing .
any facts against the appellant or his father or his step-mother E
when they were questioned by the relations or by the police.
The argument before this Court was that they should have been
summoned as court witnesses for examination under Section
540 of the Code of Criminal Procedure, 1898, which is in pari
materia with same as Section 311 of Code of Criminal F
Procedure, 1973. This Court has held that the court could have
rightly decided in such circumstances not to examine the
children under Section 540 of the Code of Criminal Procedure.
If this is the approach to be made while deciding application
under Section 311 ·of the Code of Criminal Procedure, this G
Court fails to understand as to how the evidence of Smt. Ruchi
Saxena was relevant in the instant case and why direction
should be given· to examine her as a court witness, as she was
neither present at the time when the bribe was demanded or
even at the time when the trap was arranged and laid. Without
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    906      SUPREME COURT REPORTS              [2011) 11 S.C.R.


A   examining the relevance of evidence, which may be tendered
    by Smt. Ruchi Saxena or the necessity of examining her as a
    court witness or examining the question of prejudice if at all
    which is likely to be caused to the defence, if she is not
    examined, the High Court has directed the learned Special
B   Judge to examine Smt. Ruchi Saxena as a court witness. There
    is no manner of doubt that the power under Section 311 of the
    Code of Criminal Procedure, 1973 is exercised arbitrarily and,
    therefore, the impugned judgment is liab.le to be set aside.

         17. For the foregoing reasons the appeal succeeds. The
C   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.
D
          18. The appeal accordingly stands disposed of.

    B.B.B.                                  Appeal disposed of.