Ajay Mishra vs State of M.P.

Rakesh Saksena, J.—Heard. Petitioners have filed this petition u/s 482 of the Code of Criminal Procedure challenging the order dated 10.7.2013 passed by Additional Sessions Judge, Seondha in Sessions Trial No. 73/2008, allowing the application u/s 311 of the Code of Criminal Procedure filed by the prosecution for summoning witness Gaurav Mishra in the case.

Learned counsel for the petitioners submits that the aforesaid witness Gaurav Mishra was not cited as a prosecution witness. His police statement u/s 161 of the Code of Criminal Procedure was also not recorded though his name was mentioned by the complainant in the First Information Report. Therefore, at belated stage when the case was at the stage of judgment the powers u/s 311 of the Code of Criminal Procedure should not have been exercised for filling up the lacuna left by the prosecution. He placed reliance on a Single Bench decision of this Court Raghuveer Prashad Sharma Vs. State of M.P.-2009 (4) Crimes 315 (M.P.), wherein it was held that when name of a person was not shown in challan and no statement u/s 161 of the Code of Criminal Procedure was recorded, trial Court would not be justified in allowing prayer of prosecution for summoning such person as witness.

The facts of the instant case are clearly distinguishable since the name of witness Gaurav Mishra was mentioned in the First Information Report by the complainant as an eye witness. Though, by mistake or by negligence Investigating Officer did not record his police statement, yet it cannot be held that his evidence was not essential for just decision of the case. If the trial Court is satisfied that evidence of such a person is essential for just decision of the case, it would be mandatory for him to summon such witnesses in exercise of powers u/s 311 of the Code of Criminal Procedure. It is not clear that in case of Raghuveer Prashad (supra) the name of witness, who was summoned u/s 311 of the Code of Criminal Procedure was mentioned in the First Information Report or not.

In yet another decision of the Supreme Court Ram Lakhan Singh and Others Vs. State of Uttar Pradesh, it has been observed that it is not proper to place reliance on a witness, who was not examined by police nor cited in the charge sheet. From this decision, it can be inferred that there is no bar for prosecution to produce and examine any such person in the Court as a witness whose statement was not recorded u/s 161 of the Code of Criminal Procedure and who was not named as a witness in the charge sheet. It is for the Court to appreciate the evidence of such witness taking into consideration the infirmities attached to his evidence.

The powers conferred on criminal Court u/s 311 of the Code of Criminal Procedure cannot be put at rest by non examination of a person u/s 161 of the Code of Criminal Procedure as a witness. In my opinion, trial Court committed no error in allowing the prosecution to examine witness Gaurav Mishra in exercise of powers u/s 311 of the Code of Criminal Procedure. I find no substance in the petition. It is accordingly, dismissed.