Braja Nayak vs State of Orissa

C.R. Pal, J.—This revision is directed against the order dated 11-11-1996 passed by the learned Addl. Sessions Judge-cum-Special Judge, Khurda in T.R. No. 8/95 rejecting the petition filed by the Petitioner u/s 311, Cr. P.C. to summon two of the witnesses.

The facts of the case giving rise to this petition are as follows:

On the basis of the information lodged by the Petitioner, Balugaon P.S. Case o. 25/95 was registered. After investigation, police submitted charge sheet against the Petitioner and two others for the offences u/s 341, 323,294 read with Section 34 of the I.P.C. and u/s " 3 of the Scheduled Castes and "Scheduled Tribe (Prevention of Atrocities) Act and the Court took cognizance of the aforesaid offences. After framing of the charge against the accused persons, the prosecution filed a petition to summon seven witnesses named ''in the charge sheet. In course of hearing, prosecution examined five'' witnesses and decline to examine the other two. After examining the p. w. 5, the learned Counsel for the Petitioner filed a petition u/s 311, Cr. P.C. praying to issue summons to one Nakula Charan Panda and Bhagirathi Sahoo whose names did not appear as witnesses in the charge sheet contending that they were witnesses to the occurrence and as'' such material witnesses in the case. In the said petition it was also stated that the police did not cite them as witnesses being influenced by the accused persons. The accused persons filed their objection to the said petition contending that the witnesses sought to be examined are not material witnesses since they were neither examined by the police during investigation nor there is any material to show that they have any knowledge about the occurrence.

It is also stated that the prosecution cannot be allowed to fill ''up the lacuna by summoning such witnesses of the prejudice of the accused persons. The learned Addl. Sessions Judge-cum-Special Judge, after hearing both the sides held that it is not just and proper to issue'' summon to Nakula Charan Panda and Bhagirathi Sahoo who have, neither been examined by the police nor shown as witnesses in the charge sheet and rejected the petition. Being aggrieved by the aforesaid order, the Petitioner has come up ''with this revision.

Shri V. Prithivi Raj, the learned Counsel for the Petitioner, submitted that since the witnesses sought to be examined are witnesses to the occurrence and their examination is necessary for the just decision of the case, the trial court should not have rejected the petition. The learned Addl. Standing Counsel appearing for the State also made his submission supporting the case of the Petitioner. Thus, the sole point for consideration is whether the evidence'' of Nakula Charan Panda and Bhagirathi Sahoo is essential for the just decision of the case so that they shall be summoned for examination by the prosecution in exercise of the power u/s 311 of the Code of Criminal Procedure. Section 311, Cr. P.C. gives power to the Court to summon a material- witness or to examine a person present in court or the recall a witness already examined. It confers a wide discretion on the Court to act as the exigencies of justice require. The section is in two parts the first part gives a discretionary power, but the latter part is mandatory. The use of the word ''may'' in the first part and of the word ''shall'' in the second firmly establishes this difference. Under the first part, which is permissive, the Court may act in on of the three ways.

(a) summon any person as a witness;

(b) examine any person present in court although not summoned; and (c) recall or re-examine a witness already examined.

The second part is obligatory and compels the Court to act in these three ways or anyone of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the court is bonafide of the opinion that for the just decision of the case the step must be taken. This power is exercisable at any time before the judgment. The law laid down in Jamatraj Kewalji Govani Vs. The State of Maharashtra, , 1989 (2) O.C.R. 52 (Benudhar Mohanty and Ors. v. State of Orissa), 1991 (4) ACR 452 (Mukunda Dev Baral v. Sanjib Baral and Ors., Khetrabasi Samual etc. Vs. The State of Orissa, , Amar Chand Agarwalla Vs. Shanti Bose and Another, etc., , Pakalapati Narayana Gajapathi Raju and Others Vs. Bonapalli Peda Appadu and Another, , 1992(5) O.C.R 268 (Nilamani Das v. Bhikari Nayak and Ors., 1993(6) O.C.R. 451 (Gandharba Das and Ors. v. State of Orissa), 1994(7) O.C.R 243 (Tusar Kanti Swain and Anr. v. State of Orissa), and 1996 (10) O.C.R 13 (Sa bar Mahabhoi and Ors. v. State of Orissa and Ors., on which the learned Counsel for the Petitioner placed reliance, supports the above view.

Keeping in view the above position of law as laid down in various cases noted above by the Apex Court as well as this Court it is to be considered whether the trial court exercised the juridiction vested in him by Section 311 of the Code in a sound and judicious manner. In this context, reference may also be made to the principle laid down in 1995(8) O.C.R 242 (Sri Kishore Chandra Mohapatra v. Panchanan Singh and Ors., wherein -it has been held that the Court would not be bound to issue summons u/s 311, Cr. P.C. unless it is satisfied that the evidence will be very material. It is noticed from the impugned order that the trial court refused to summon- the witnesses as it found that the examination of the said two witnesses is not necessary for the just decision of the case. Here it may be mentioned that the Petitioner is the informant in this case. It is found that he has neither named the witnesses in the F.I. R. nor in his statement recorded u/s 161, Cr. P.C.. None of the witnesses examined by the police during investigation also named the said two persons to have seen the occurrence. It also does not appear from the record and even from the evidence adduced by the Petitioner in the trial court that the Investigating Officer is in any way hostile towards him or was influenced by the accused persons.- Under the circumstances, it cannot be said that the two witnesses whom the Petitioner seeks to examine, are material witnesses. It is also noticed that the Trial Court assigning sound reasons, has rejected the petition. Therefore, decline to interfere with the same.

Accordingly, the Criminal Revision is dismissed.

Crl. revision dismissed.