Deenanath Singh vs Omprakash and Another

Fakhruddin, J.—Heard.

This petition has been filed u/s 482 Code of Criminal Procedure against the revisional order dated 30-5-2002 passed in Criminal Revision No. 93 of 2002 by the Vlth Additional Sessions Judge, Ambikapur whereby the order dated 11-4-2002 passed by the C.J.M. Ambikapur, Distt. Sarguja, in case No. 1479 of 97 has been affirmed.

It is submitted that charges were framed against the Applicant on 18-8-1998 by the Magistrate, prosecution evidence was declared to be closed and thereafter matter was posted on 2-3-2002 for examination of the accused. On 2-3-2002 the accused persons were examined u/s 313 Code of Criminal Procedure and the matter was fixed for arguments on 8-3-2002. It is further submitted that on the said date when the arguments were to be heard, the complainant filed an application u/s 311 of Code of Criminal Procedure for calling the investigating officer and the Applicant thereto has filed reply. After hearing the parties, the trial Court has allowed the said application holding that the examination of the Investigating Officer was necessary for the adjudication of the matter.

In support of his contention, Shri Sinha, counsel for the Petitioner has relied on a decision of High Court of Madhya Pradesh Saodhan S/o Mitthulal v. State 1987 MPLJ 465 which has been considered by the Court below. It is contended by the counsel for the Applicant that it is the prosecution and the accused who have right. The complainant has no such right. The application in this case has not been made by a total stranger but by the complainant. In this connection, the law laid down in the case of R. Rathinam v. State by DSP District Crime Branch Madurai District Madurai (2002) 2 SCC 391 needs to be seen. In that case, the bail was granted to certain persons. A group of practicing Advocates presented petitions before Chief Justice of the High Court seeking initiation of suo motu proceedings for cancellation of bail. The Chief Justice placed the petitions before a Division bench. The Division Bench refused to exercise the suo motu powers on the ground that the petition submitted by the Advocates was not maintainable. It was held that the frame of Sub-section (2) of Section 439 indicates that it is a power conferred on the courts mentioned therein. It was held that there was nothing to indicate that the said power can be exercised only if the State or investigating agency or a Public Prosecutor moves by a petition. It was held that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. It was held that the said power could also be exercised suo motu by the High Court. It was held that, therefore, any member of the public, whether he belongs to any particular profession or otherwise could move the High Court to remind it of the need to exercise its power suo motu. It was held that there was no barrier either in Section 439 of the Code of Criminal Procedure or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. It was held that if the High Court considered that there was no need to cancel the bail then it could dismiss the petition. It was held that it was always open to the High Court to cancel the bail if it felt that there were sufficient enough reasons for doing so.

Miss. Sharmila Singhai, Dy. Govt. Advocate for the State submits that so far as examination/recall of witnesses is concerned, Section 311 of Code of Criminal Procedure gives a power to the Court to summon a material witness or to examine a person present in the Court or to recall a witness already examined. She further submits that this power is found in Section 165 of the Indian Evidence Act. In support of her contention, she relied on a decision of the Supreme Court Jamatraj v. State of Maharashtra AIR 1968 SC 126 in which has been held in paragraphs 5 and 6 as under:

(5) The question falls to be considered u/s 540 of the Code of Criminal Procedure. That section is to be found in Chapter 46 of the Code among several others which have been appropriately described in the heading to the chapter as ''miscellaneous''. It provides:

Section 540: Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

(6) The section gives a power to the Court to summon a material witness or to examine a person present in court or to recall a witness already examined. It confers a wide discretion on the Cowl to act as the exigencies of justice require. Another aspect of this power and complementary to it is to be found in Section 165 of the Indian Evidence Act which provides:

Section 165. The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither, the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross examine any witness upon any answer given in reply to any such question:

These two sections between them confer jurisdiction on the Judge to act in aide of justice.

So far as Section 311 of Code of Criminal Procedure is concerned, it can be exercised at any stage by the Court. It can be exercised at the behest of accused, at the behest of defence and even at the behest of prosecution. Section 311 Code of Criminal Procedure empowers the Court to summon material witness. The Supreme Court in the case of Shailendra Kumar v. State of Bihar AIR 2001 SCW 4984, in para 11 has held that:

Bare reading of the aforesaid section reveals that it is of very wide amplitude and if there is any negligence, latches or mistakes by not examining material witnesses, the Courts function to render just decision by examining such witnesses at any stage is not, in any way, impaired. This Court in Rajendra Prasad Vs. The Narcotic Cell Through its Officer in Charge, Delhi, observed. "After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.

The application for examination of the witnesses is made by the complainant who had lodged the F.I.R. and it is for the examination of the Investigating Officer, which was given up merely on me ground that he has been transferred. In the opinion of this Court examination of the Investigating Officer in a criminal case is most essential not only from the point of view of establishment of the prosecution case but also for substantiation of the defence case. In the instant case where the Investigating Officer has not been examined merely on the ground that he has been transferred, the complainant was justified in making the application. The presence of Investigating Officer was necessary. It was the duty of the prosecution to get the witness present. If there is a failure on part of any of the witnesses to remain present, it is the duty of the Court to take action including issuance of bailable warrant/non-bailable warrants as the case may be. It should be well understood that the prosecution cannot be frustrated by such methods and victims of the crime cannot be left to lurch.

In this connection, the judgment of the Hon''ble Supreme Court in the case of P. Ramachandra Rao v. State of Karnataka (2002) 2 LRI 337 is also pertinent. In paragraphs 32( 1) to 32(5) of the judgment, it has been held that:

(1) The dictum in ARAntulay''s case is correct and still holds the field.

(2) The propositions emerging from art 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in AR Antulay''s case, adequately take care of right to speedy trial. We uphold and reaffirm the said propositions.

(3) The guidelines laid down in AR Antulay''s case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.

(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not oblige 1 to terminate trial or criminal proceedings merely on account of lapse of (sic) as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in AR Antulay''s case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused.

(5) The criminal courts should exercise their available powers. Such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial judge can prove to be better protector of such right man any guidelines. In appropriate cases jurisdiction of High Court u/s 482 of Code of Criminal Procedure and Article 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions.

The matter has been examined by the Courts below and after hearing the parties and considering the facts and circumstances, it has been held that examination of the witnesses is necessary''. Let the witnesses be examined and if occasion arises, questions be put to the accused u/s 311 of the Code of Criminal Procedure and the accused be given liberty to lead evidence, if so desire.

In view of what has been stated hereinabove, no case is made out for exercise of jurisdiction u/s 482 Code of Criminal Procedure warranting interference in the impugned orders.

Application is dismissed.