Bhoop Singh vs State of Haryana

G.S. Chahal, J.

This order will dispose of three connected Criminal Miscellaneous petitions No. 13804M, 13805M and 13806M of 1990, since a common question of law is involved.

Bhoop Singh has been convicted for an offence under section 9 of the Opium Act and sentenced to rigorous imprisonment for one year and a fine of Rs. 5000/, vide judgement dated 3.5.1989 passed by the learned Judicial Magistrate 1 Class, Fatehabad. Pending appeal, the Public Prosecutor moved an application for permission to lead additional evidence so as to examine Constable Sammy Singh whose affidavit Ex. PY was filed before the trial Magistrate which was not properly sworn and was defective . The learned Addl. Sessions Judge allowed the application, holding that summoning of Constable Samey Singh was necessary for the just decision of the case ordered the summoning of the said witness.

In Cr.M. 13805 M/1990 Mohinder Singh and Bhoop Singh were convicted of an offence under Sec. 9 of the Opium Act and each of them was sentenced to RI for six months and a fine of Rs. 000/ vide judgement dated 23.5.89 passed by the learned Judicial Magistrate I class, Fatehabad. Pending the appeal, the Public prosecutor moved an application for summoning MHC Ram Niwas whose affidavit was filed, but had been found as being not properly sworn. The learned Addl. Sessions Judge allowed this application, considering that it was necessary for a just decision of the case and ordered the summoning of the witness.

In Cr. M. 13806 M/1990 Mohinder Singh tried under Section 9 of the Opium Act in respect of FIR 513 dated 24.9.83, convicted and sentenced to RI for two years and a fine of Rs. 1,000/ vide judgement dated 23.5.89 by the learned judicial Magistrate I Class, Fatehabad. Pending the appeal the Public prosecutor moved an application for summoning Constables Samey Singh and Jai Narain, as the affidavits swornby them were defective; in as much as the same were not properly sworn. This application was allowed by the learned Addl. Sessions Judge, considering that the summoning of the said two witnesses was necessary for the just decision of the case and he ordered their summoning.

The petitioners have sought quashing of the summoning orders and have challenged the power of the learned Addl. Sessions Judge in summoning the said witnesses for their examination.

In all the three cases, the prosecution had, at the trial, stage moved the Court for summoning of the witnesses on the basis that their affidavits were defective but these applications had not been allowed by the Court. I do not find force in the contention of the learned counsel for the petitioners that the appellate Court did not have the power to summon the witnesses under Sec. 311 of the Code of Criminal Procedure . This power can be exercised at the trial, as well as the appellate stage. I am fortified in my view by the observations of S.S.Grewal, J in Jarnail Singh @ Jaila v. The State of Punjab, 1990(1) C.C. Cases 376 (HC), wherein the learned Judge, after relying upon decisions of the Supreme Court in Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178 and Raghunandan v. State of UP, AIR 1974 SC 493 recorded a finding that powers under sec. 311 of the Cr.P.C. can be exercised by any Court, at any stage of inquiry trial or proceedings under the Code. The provisions will include the hearing of the appeal by the Court of Session.

The scope of section 311 of the Code was examined by a Division Bench of this court in Sukhdev Singh v. State of Punjab, 1982(2) C.L.R. 318, Wherein K.S. Tiwana, J., speaking for the Bench, observed as follows :

"The question, therefore, whether or not after the entire evidence of the prosecution or the defence is over, the Court should permit further evidence to be allowed, will depend upon the facts of each case. It cannot be laid down as a general rule that in no case additional witnesses be called by the Judge at the suggestionof the prosecution, brfore the close of the trial of the case, where the defence has been closed or the arguments have been heard. Trial comes to an end with the pronouncement of the judgement, though judgment itself may not be part of the trial. In Jamatraj Kewalji Govani''s case it was observed :

"Section 540 is intended to be wide as the repeated use of the word ''any ''throughout its length indicates. " The very fact that the section is couched in wide terms requires a Judge to exercise caution in using his power under section 311 of the Code. It is, therefore, imperative that before using his powers the Judges has to take into account the circumstances of the case of examining witnesses after the entire case is closed and that should not cause injustice to the accused. It should not operate to demolish the case set up by the accused if he has done so in his defence. We do not think that the mere fact that evidence is permitted to be taken after the entire prosecution case is over is in itself in excess of the powers of the Court. No hard and fast rules can be prescribed as to when and at what stage this discretion should be exercised. The anxiety for justice is paramount and should be kept in view. The Court should be unmindful of the fact of the use of the discretion in favour or against any party . The principle that such evidence should not demolish the case set up by the accused in his defence, if he has done so, should be present to the mind of the Judge at the time when he takes a decision "

In each of the three cases, the public Prosecutor had moved an application in the trial Court for resummoning of the formal witnesses whose affidavits had been filed, as the same had been found to be defective. These applications had been disallowed by the learned Magistrate. The learned Addl. Sessions Judge had considered this fact and after appreciating the whole matter, recorded the finding that it was necessary for the just decision of the case. In my view it was a proper exercise of jurisdiction by the learned Addl. Sessions Judge and calls for no interference by this Court.

Keeping the foregoing discussion in view, all the three petition, enumerated above, are dismissed.