RAMESH CHAUHAN Vs. RAJVIR SINGH

JUDGEMENT

(1.) The petitioner herein/accused had filed three applications before the learned trial Court, one application was filed under Sec. 311 Cr.P.C., another under Sec. 315 Cr.P.C. and a third application was filed under Sec. 45 of the Indian Evidence Act.

(2.) Before proceeding to render an adjudication upon the tenability of the renditions of the learned trial Court impugned before this Court, it is imperative to advert to the factum of the learned trial Court having closed the right of the accused petitioner herein to adduce evidence in defence. The order of the learned trial Court closing the right of the accused/petitioner herein to adduce evidence in defence was assailed before the learned Sessions Judge, Shimla, who while disposing of the revision petition as preferred before it, by the aggrieved, assailing it, modified the order of the learned trial Court whereby it closed the right of the petitioner herein/accused, to adduce evidence in defence, by directing the learned trial Court to afford to the petitioner herein a right to adduce evidence in defence within a period of nine months. However, the petitioner herein yet did not avail the opportunity afforded to him by the learned Sessions Judge to adduce his evidence in defence. Consequently, the learned trial Court was constrained to subsequently order for the closing of the opportunity to the petitioner herein to adduce his evidence in defence. The said order was assailed by the petitioner herein by his instituting Cr.MMO No. 27 of 2015 which petition came to be dismissed by this Court. In face thereof the sequelling ensuing inference is of the petitioner herein being subsequent to the rendition of this Court in Cr.MMO No. 27 of 2015 being consequently debarred to adduce his evidence in defence. The petitioner concerted to move the aforesaid applications before the learned trial Court which vide a common order came to be dismissed. Both the applications under Sec. 311 Cr.P.C. and the application under Sec. 315 Cr.P.C. were both maintainable as well as amenable for acceptance by the learned trial Court, only in the event of the petitioner herein having established that in the garb of the aforesaid applications instituted by him before the learned trial Court, he has not endeavoured to circumvent the conclusive orders of the learned trial Court whereby his right to adduce evidence in defence stood closed. In determining whether the petitioner, has by his taking to subsequently institute applications under Sec. 311 Cr.P.C. and under Sec. 315 Cr.P.C. before the learned trial Court concerted to circumvent the conclusive orders of the learned trial Court closing his right to adduce evidence in defence, it is imperative to peruse the contents of the applications constituted under Sec. 311 Cr.P.C. as well as under Sec. 315 Cr.P.C. There is a manifestation in paragraph 2 of the application under Sec. 311 Cr.P.C. of the petitioner herein concerting to bring on record certain documents before the learned trial Court inasmuch as affidavit of 4.5.2009, receipt of 7.6.2010, affidavit of 7.2.2015 executed by Narinder Kumar and to also examine him, for a just decision of the case. The effort on the part of the petitioner herein to, through his application under Sec. 311 Cr.P.C. preferred before the learned trial Court adduce into evidence the aforesaid documents appears to be a cleverly devised machination on his part, to circumvent the order of the learned trial Court whereby his right to adduce evidence in defence stood closed. Even though the amplitude of the plenary power conferred upon the trial Court under Sec. 311 Cr.P.C. takes within its ambit any application preferred "at any stage" of any inquiry, trial or proceeding under the Code by either the prosecution or the accused or to summon any person as a witness though not summoned in person besides to recall or re -examine any person already examined. Nonetheless, the plenary powers conferred thereunder upon the trial Court qua it being empowered to "at any stage" of inquiry, trial or any proceedings receive any application preferred before it either by the prosecution or the defence or summon any witness or recall any of the witness, cannot be interpreted or read in isolation vis -a -vis orders recorded by the learned trial Court whereon though opportunities stood afforded to the accused to adduce his evidence in defence, he yet omits to avail of such opportunities, constraining the learned trial Court to record an order closing his right to adduce evidence in defence. Moreso when the order of the learned trial Court closing the right of the accused to adduce his evidence in defence attains conclusivity rendering hence the provisions of Sec. 311 Cr.P.C. resorted to by the petitioner herein subsequent to the aforesaid conclusive order of the learned trial Court, to be unavailable for reliance by him nor reliefs thereupon were affordable to him, as vindicating such an endeavour on the part of the accused would tantamount to this Court, proceeding to both subvert the order of the learned trial Court whereby the right of the accused to adduce evidence in defence stood conclusively closed besides would also tantamount to countenancing an attempt on the part of the accused petitioner herein, to in the guise of his relying upon the provisions of Sec. 311 of the Cr.P.C. circumvent the conclusive orders of the trial Court whereby his right to adduce evidence in defence stood closed.

(3.) Apart therefrom immense succor to the inference aforesaid derived by this Court, of the applications instituted by the petitioner subsequent to the conclusive rendition of the trial Court whereby it closed the right of the accused to adduce evidence in defence, under Sec. 311 Cr.P.C. and under Sec. 315 Cr.P.C. being nothing but a cleverly resorted machination on his part to wriggle out beside evade the conclusive rendition of the learned trial Court closing his right to adduce evidence in defence, is garnered by the factum that all the pieces of evidence proposed to be adduced through application under Sec. 311 Cr.P.C. constituted a part of the defence of the accused which right of the accused to adduce them in evidence in his defence, stood closed by a conclusive rendition of the learned trial Court. As a natural corollary, if the application under Sec. 311 Cr.P.C. besides the application under Sec. 315 Cr.P.C. had come to be allowed, it would have facilitated the petitioner herein to adduce evidence in defence which opportunity to him to adduce evidence in defence previously remained unavailed of by him constraining the learned Judge to close his right to adduce evidence in defence. In revering the espousal of the learned counsel for the petitioner herein it would subvert besides erode the essence of the provisions of Sec. 311 Cr.P.C. which are meant to be resorted to only when they are not preceded by a conclusive order of the learned trial Court closing the opportunity of the accused to adduce his evidence in defence. Moreover, the salient nuance borne by the parlance "at any stage" existing in Sec. 311 Cr.P.C. which stands extracted hereinafter, is of its permitting the defence to adduce evidence in defence besides its permitting the prosecution to resort to its provisions, only when there are no previous conclusive renditions of the trial Court closing the right of the accused to adduce evidence in defence or its conclusively closing the right of the prosecution to adduce its evidence. If any interpretation than the one aforesaid is afforded to the parlance borne by the phrase "at any time" existing in Sec. 311 of the Cr.P.C. it would open pave way for subversion of besides circumvention of a conclusive rendition of a trial Court closing the right of the accused to adduce evidence in defence.