Directorate of Revenue Intelligence v. Ashok Kumar

1. The present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter shall bereferred to asthe "Cr.P.C.") has been filed by the petitioner for setting aside the order dated 07.12.2012, passed by the learned Additional Chief Metropolitan Magistrate, New Delhi whereby the application filed by the petitionerherein under Section 311 Cr.P.C. was dismissed.

2. Factual matrix, emerges from the record, is that the petitioner i.e. Directorate of Revenue Intelligence (DRI) had filed a complaint for offence punishable under Section 135(l)(b) of the Customs Act, Crl.M.C. 941/2013 2016:DHC:8987 1^- \ r 1962 against the respondent and one Sukhdev Singh. It was alleged in the complaint that on 21.11.1995, the DRI intercepted one truck bearing No.DL-lG-1374 at 0730 hours near Libaspur Petrol Pump at G.T. Kamal Road, Delhi. From the search of truck, smuggled ball bearings worth Rs.43,72,000/- were recovered. After completion of enquiries, complaintwas filed against the accused persons in the Trial Court.' The Trial Court took cognizance of the offences. On 14.03.2003, co-accused Sukhdev Singh was declared as Proclaimed Offender. On 04.01.2006, pre-charge evidence was closed. An application under Section 311 Cr.P.C. was moved by the petitioner which was allowed vide order dated 06.08.2012 and the petitioner examined the witnesses.

3. On 25.10.2012, another application under Section 311 Cr.P.C. was moved by the petitioner to examine the witnesses Sh. B.K. Bhattacharya, L.S. Bisht and Harcharan Singh. The said application of the petitioner was dismissed by the Court below vide order dated 07.12.2012. Feeling aggrieved ofthe dismissal ofthe application, the present petition has been preferred by the DRI/petitioner.

4. The arguments advanced by the counsel for the petitioner are

V. r that witness Sh. B.K. Bhattacharya is the complainant and seizing officer and his examination has been recorded partly. The examination of this witness is essential for the just decision of the case and no prejudice would be caused to the respondent in case this witness is examined. Rather, a greatprejudice would be causedto the petitioner if this witness is not examined. In the prayer clause, it has been prayed fo(^ issue of directions to the Trial Court to issue summons to Sh. B.K. Bhattacharya.

5. Perusal ofrecord shows that witness Sh. B.K. Bhattacharya was examined partly on 22.03.2005 and his further examination was deferred for the want of case property. It is apparent from the complaint filed before the Trial Court that Sh. B.K. Bhattacharya is the complainant and also the seizing officer.

6. In Mohanlal Shamji Soni v. Union ofIndia and another, AIR 1991 SC1346, it has been observed that: "The principle of law that emerges from the views expressed by this Court in the above decisions is that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fairplay and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case."

7. In Department of Customs v. Parmod Kumar Dhameja and ors. (CrLM.C. 1930/2010 decided on 17.07.2013), this Court observed that: "Coming to the merits of this case, Section 311 Cr.PC empowers the Court to summon any person as a witness or examine any person though not summoned as a witness or recall or re-examine any person already examined at any stage of the trial. Section 311 further provides that the Court shall exercise this power if the evidence appears to be essential to the just decision of the case."

8. On perusal of record, it is apparent that Sh. B.K. Bhattacharya is an important witness for the prosecution as he is the complainant as well as the seizing officer. His examination has already been ^ > recorded partly and his further examination was deferred for the want of case property. In my considered view, the examination of this witness is essential and necessary for just decision of the case as this witness is yet to identify the case property and exhibit the same. It is r-- • matter of record that the charge in the present case has not yet been framed and the prosecution was adducing pre-charge evidence when the application under Section 311 Cr.P.C. was dismissed. In these circumstances, no prejudice shall be caused to the respondent if the witness is allowed to be summoned.

9. In view ofthe above mentioned the facts and "circumstances, the order'dated 07.12.2012 passed by the Trial Court is set aside and the petitioner is permittedto sunmionthe witness Sh. B.K. Bhattacharya.

10. With the above observations, the present petition is allowed.

11. Application Crl.M.A. 2690/2013 accordingly disposed of. •> >GE JANUARY 07,2016 ^ dd