Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1345    OF 2011 (Arising out of S.L.P. (Criminal) No. 6562 of 2010)

Vijay Kumar ... Appellant

Versus

State of U.P. and another        ...Respondents

J U D G M E N T

J.M. PANCHAL, J.

Leave granted.

2. This  appeal,  by  grant  of  special  leave,  is  directed  

against judgment dated May 10, 2010, rendered by  

learned Single Judge of High Court of Judicature at  

Allahabad in 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, 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 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  was objected to,  by  

the Nagar Palika, Aonla on the ground that Nagar  

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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.   

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4. Feeling aggrieved by the order of injunction, Nagar  

Palika  filed  miscellaneous  appeal  under  Order  43  

Rule 1 CPC 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 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 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  

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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  

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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.   

7. On  December  16,  2006  an  application  dated  

February  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 also present at the time when the  

said order was passed.

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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-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 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.

9. On April 2, 2010, three separate applications were  

filed by the accused.  One application No. 103 Kha  

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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  

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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.

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 challenging the  

order by which his request to summon and examine  

Smt. Ruchi Saxena as a court witness was rejected.

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11. The High Court has allowed the revision petition by  

judgment  dated  May  10,  2010  giving  rise  to  the  

instant appeal.

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: -

“311. Power  to  summon  material  witness, or examine person present.  – Any  Court may, at any stage of any inquiry, trial or  other  proceeding  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; 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.”

This  Section  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  

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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 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 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 germane  

to the issue involved, or if proper evidence is not adduced  

or relevant material is not brought on record due to any  

inadvertence.   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  

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judicially, as wider the power, the 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  exercised  if  the  court  forms  an  opinion  that  the  

examination  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.   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  

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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-

examined by the accused.  Smt. Ruchi Saxena had  

nothing  to  do  with  the  bribe  case  either  as  a  

complainant 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 the learned Special Judge to  

summon  Smt.  Ruchi  Saxena  as  a  court  witness  

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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  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.   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  any  reason.   The  High  Court  

failed to consider the case of the prosecution that  

the  application  was  submitted  by  the  respondent  

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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 case what is required to  

be 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 Smt. Ruchi Saxena as a court witness.

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  

decision of  this  Court  in  Sawal  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  

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the wife was pushed inside the room and her cries  

of “Bachao Bachao” came from inside the room, her  

children were heard 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 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  

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  

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application  under  Section  311  of  the  Code  of  

Criminal Procedure, this 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 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 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  

liable to be set aside.

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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.

.....................................J. [J.M. Panchal]

.....................................J.                                        [H.L. Gokhale]

New Delhi; August 03, 2011.

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