The Bombay High Court has ruled that a civil court has the power to call a witness under Section 311 of the Code of Criminal Procedure while conducting an inquiry under Section 340 of the Code of Criminal Procedure.
Justice Mridula Bhatkar was hearing a writ petition filed by the Union of India against an order of a civil judge in Pune, who using powers under Sec 311 of the CrPC, issued summons to the district collector to submit certified copies of the revenue record, mutation entries and acquisition proceedings in respect of the property in question.
The property in question is a piece of land which is under dispute, as the respondent in this petition, Haresh Milani, filed a suit for simpliciter injunction against the Union of India from obstructing his possession on the land or from dispossessing him.
During the pendency of this suit, Milani filed an application before the civil judge, Pune, alleging that the Union has made a false statement on oath by stating that the said land was acquired by them under the Acquisition Act, 1970.
Thus, Milani sought an inquiry to be conducted under Section 340 of the CrPC and also calling on the collector to produce documents in respect of acquisition proceeding of the suit property as the Union had committed an offence under Sec 195 of CrPC.
The judge issued summons to the collector under Section 311 of the CrPC, directing him to submit certified copies of the revenue record, mutation entries and acquisition proceedings. Following this, an application for review was filed by the Union, but was rejected.
Submissions and Observations
This order was challenged before the high court and GR Sharma, who appeared on behalf of the Union, argued that a civil judge has no right to use powers under CrPC much less S.311 of CrPC to call or recall a witness.
He also said no audience was given to his clients before issuing summons to the collector. He placed several judgments on record in support of these arguments.
Justice Bhatkar examined two specific questions in this matter-
(1) Is it obligatory to give audience to the person against whom the court wants to proceed while exercising powers under Section 340 of Code of Criminal Procedure?
(2) Whether the Civil Court conducting inquiry under Section 340 of Code of Criminal Procedure has powers to call witness and can exercise the power under Section 311 of Code of Criminal Procedure?
Under Section 195, Justice Bhatkar noted that the court has to undergo a process of formation of opinion in respect of would be or proposed inquiry.
Thus, it is a stage of preliminary enquiry.
She observed: “The best source of forming opinion is verification of facts and for the purpose of verification, true and corrected facts should be placed before the judge. In the process of forming opinion in the inquiry the procedural power to call witness, to bring documents….. vests with him.
Thus, Section 311 of the Code of Criminal Procedure is helpful not only in the trial but also in any enquiry or any proceedings under the Code to get true facts on record.”
Relying on the judgment of Nagpur bench in Pritish R Tayde and Anr vs The State of Maharashtra & Ors, which was upheld by the Supreme Court, the court held that as far as S.340 of CrPC is concerned, the judge need not hear the other side, but he may hear the applicant.
Thus, the writ petition was dismissed.
Read the Judgment here.