Application U/S. 311 CrPC Can Be Filed By Anyone For Just Decision, Not Just Prosecution Or Complainant: Punjab and Haryana High Court
While allowing Times Group's petition challenging the dismissal of its application under Section 311 of CrPC by trial court in a case of alleged forced religious conversion, the Punjab and Haryana High Court has said the provisions of Section 311 CrPC can be invoked by anyone who is able to show that the evidence of witness sought to be examined will be necessary for just decision of...
While allowing Times Group's petition challenging the dismissal of its application under Section 311 of CrPC by trial court in a case of alleged forced religious conversion, the Punjab and Haryana High Court has said the provisions of Section 311 CrPC can be invoked by anyone who is able to show that the evidence of witness sought to be examined will be necessary for just decision of the case.
Justice Jasgurpreet Singh Puri said a perusal of Section 311 CrPC would show that it is the duty of the court to apply its mind to ascertain as to whether testimony of person sought to be summoned is required for just decision of the case.
"However in such like cases, power has to be exercised in a very careful, diligent and judicious manner for which cogent and strong reasons should be recorded," the bench added.
The court said the trial court could not have dismissed the application filed by Times Group on the ground that it was a third party and alien to the case.
"Rather the learned trial Court ought to have applied its mind and considered the application on its merits without sticking to the procedural objection that the petitioner-Company was a third party. The trial Court ought to have considered the same in the light of the nature of the evidence which is sought to be produced vis-a-vis its impact upon the subject matter of the case," the court said, while setting aside the trial court order and directing to decide the Section 311 CrPC application afresh on merits.
Why was Bennett Coleman and Company Limited before court?
In August 2021, a case was registered against one Abu Bakar under Sections 153-A, 295-A, 342 and 506 IPC on the basis of allegations of forced religious conversion and use of abusive language against Hindu religion, idol worship and Hindu deities.
Earlier in July 2021, Times Now Nav Bharat - the Hindi news channel of the Times Group, had broadcast a "sting operation" in connection with the matter. Haryana Police later visited the news channel's office at Noida and made a requisition for the video of the entire telecast. Arunesh Kumar, Deputy General Manager - who is a designated person in the IT Department at Times Global Broadcasting Company Limited, is stated to have extracted the requisitioned telecast in a pen drive and handed over the same as prosecution evidence to the concerned Investigating Officer.
However, a newly-joined journalist Abhishek issued a Certificate under Section 65-B of the Evidence Act and handed it over to the Haryana Police, Times Group told the court. The journalist was later summoned by the court as a prosecution witness.
Before the court of Chief Judicial Magistrate, the Times Group moved an application praying that Kumar be summoned as a prosecution witness as he was duly authorized person under whose control the IT systems were working and all recordings are stored and saved as part of the official records. The court dismissed the application saying the company had no locus standi to file it.
Can application under Section 311 CrPC be filed by a person who is neither victim nor the prosecution itself nor in the list of prosecution witnesses?
Observing that it cannot be said that subject matter of the telecast is not related to the subject matter of the FIR, the court said Abhishek, who has been named as prosecution witness, was not connected with the IT Department or with the computer system. Kumar is a designated person in the IT Department of the company who extracted the requisitioned telecast in a pen drive to be handed over as prosecution evidence to the concerned Investigating Officer, the court noted.
The court perused Section 65-B of the Indian Evidence Act and observed that under sub-section (4) when a statement is required to be given in evidence by virtue of this section, then a certificate is to be issued which is to be signed by a person occupying a responsible official position in relation to the operation of relevant device or the management of the relevant activities which shall be an evidence of any matter stated in the certificate.
"In the present case, the person who has now been summoned as a prosecution witness namely Abhishek was not a competent person nor he was authorised regarding the same. He was neither incharge of the computer system nor he was operating or managing the computer system of the Company. However, on the other hand, a person who is sought to be summoned and prove the certificate under Section 65-B of the Indian Evidence Act i.e. Deputy General Manager namely Arunesh Kumar is rather the authorised person vide Annexure P-7 and also as per the petitioner-Company, he is a correct person to issue certificate under Section 65-B Indian of the Evidence Act and to prove the same. The certificate under Section 65-B and proving of the same, certainly goes to the root of the matter and therefore, the only person who is duly authorised regarding the same can be a competent witness in this regard."
The court discussed various judgements with regard to Section 311 of CrPC. The observations made in Varsha Garg Versus State of Madhya Pradesh and others, Mina Lalita Baruwa Versus State of Orissa and others, Zahira Habibulla H. Sheikh and another Versus State of Gujarat and others, Khatta Singh Versus CBI, Chandigarh and other, and Anvar P.V Versus P.K. Basheer and others were reproduced by the court.
Justice Puri said Times Group is neither the complainant nor a victim but is a telecasting company that had conducted a sting operation and its video has got direct bearing upon the subject matter of the FIR.
"This Court is of the view that the subject matter of the telecast goes to the root of the matter. The scope of Section 311 Cr.P.C is very wide as has been so held in a plethora of judgments as discussed above. The journalist namely Abhishek who has been summoned as a prosecution witness is not an authorized person, according to the petitioner-Company, whereas the Deputy General Manager namely Arunesh Kumar is an authorised person to issue a certificate and prove the same under Section 65-B of the Evidence Act vide Annexure P-7 which is an authorization letter. Therefore, this Court is of the view that even if the petitioner is not a victim nor complainant but he could have certainly filed application under Section 311 Cr.P.C on the basis of facts and circumstances," the court said.
While allowing Times Group's petition, the court held that for the purpose of filing of application under Section 311 Cr.P.C, it is not necessary that the applicant has to be either complainant or prosecution or victim or a listed witness.
"The impugned order dated 20.10.2022 (Annexure P-1) is hereby set aside and quashed. The learned trial Court is directed to decide the application filed by the petitioner-Company vide Annexure P-6 afresh on merits and in the light of the aforesaid judgments and also in the light of observations made above and strictly in accordance with law," it said.
Senior Advocate R.S Rai represented the Times Group.
Advocate Nidhi Garg, AAG, appeared for State of Haryana
Title: Bennett Coleman and Company Limited versus State of Haryana and others
Citation: 2023 LiveLaw (PH) 51