Dinesh and Others vs State of M.P.

M.C. Garg, J.—The petitioner has come before this Court u/s 482 CrPC assailing the order passed by the revisional Court for having dismissed the revision petition filed by the petitioner against the order passed by the Additional Sessions Judge, Sehore, dated 18-10-2011 rejecting the revision petition filed by the petitioner u/s 397 CrPC aggrieved by the order passed by the Additional Sessions Judge in Criminal Case No. 33/2008 [State of M.P. vs. Dinesh and others] whereby, an application filed by the victim u/s 311 CrPC for producing the doctor who is not a witness as per the list of witnesses filed by the prosecution along with their report u/s 173 CrPC. The petitioner wants quashing of the order of the learned Additional Sessions Judge summoning of such a witnesses on the request of the victim and also the order of the revisional court upholding the said order. According to the learned Counsel for the petitioner in view of Section 301 CrPC there being no permission to be granted to the victim to assist the Public Prosecutor and the Public Prosecutor having not filed an application u/s 311 CrPC and the fact that the witnesses who is sought to be produced along with record is not a part of the report filed by the police u/s 173 CrPC, the request of the victim should not have been allowed by the Court concerned. To substantiate his submission the learned Counsel for the petitioner has relied upon the following decisions:

Somasundaram Vs. P. Chandra Bose and Another,

Kuldip Singh Vs. State of Haryana,

Shiv Kumar vs. Hukum Chand, 1999 STPL(LE) 26658 Sc.

I have given my thoughtful consideration to the rival contentions of the learned Counsel for the petitioner. I have also gone through the provision contained in Section 311 CrPC which is a unique provision, reads as under:

Power to summon material witness, or examine person present.-

Any Court may, at any stage of any inquiry, trial or other proceeding 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 to be essential to the Just decision of the case.

This provision is a provision which entitles a Judge holding trial to record evidence even of a person who is present in Court and even to recall a witness who was summoned earlier at the instance of the prosecution or the defence or of his own, if the examination of such witness is necessary to meet the ends of justice. Section 301 CrPC has no bearing on the powers of the Court u/s 311 CrPC.

This aspect has been considered by this Court in an elaborate judgment delivered by Hon''ble Justice Dipak Misra [Now a Judge in the Supreme Court] in the case of Hiralal vs. State of M.P. Reported in 1997 (2) Crimes SC 634. The entire judgement which, is relevant to the issue involved in this case is reproduced hereunder for the sake of reference:

In this revision the applicant calls in question the legal validity of the order passed by the learned Second Additional Sessions Judge, Seoni in Sessions Trial No. 64/92, whereby he has refused to entertain an application filed u/s 311 of Cr.P.C. For summoning of certain witnesses.

To appreciate the rival contentions raised at the bar, I have perused the impugned order. Needless to emphasize, it is absolutely a cryptic order. The reasons given by the Court below relate only to the closer of the prosecution case. There is no discussion with regard to any other aspect. The prosecution had also not filed any objection indicating its stand. The validity of this order is to be tested keeping the language employed u/S 311 of the Code. It is essential to refer to the provision u/S 311 of Cr.P.C. Which reads as under:-

Power to summon materiel witness, or examine person present.

Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person its 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 to be essential to the just decision of the case.

From the aforesaid provision it is crystal clear that the court has been empowered to summon any person as a witness at any stage of any enquiry, trial or other proceedings. The power is not confined to any particular class of person. The wide power has been conferred to further the ends of justice. The court keeps its mind open to perceive the desirability of any evidence being brought on record for just decision of the case. It is a cardinal principle in the law of evidence that the best available evidence should be brought before the court. If it appears to the court that evidence of a particular witness is essential for the just decision of the case, statute casts the mandate on the court to summon him. Where the evidence of any person which in the opinion of the Court is essential for a just decision of the case the court has authority to exercise its discretionary power in any of the three ways, mentioned in the first part of the section. It is settled in law if the conditions under this provision are satisfied, the court can call a witness not only on the motion of the either the prosecution or the defence, but it can do so on its own motion. The apex court in the case of Mohanlal Shyamji Soni Vs. Union of India and others, while dealing with the jurisdiction of the court u/s 311 of the code has laid down as under

It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of the court not only to do justice but also to ensure that justice is being done. In order to enable a court to find out the truth and render a just decision the salutary provisions of section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or reexamine any person already examined who are expected to be able to throw light upon the matter in dispute, because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. The very usage of the words such as ''any court'' ''at any stage'', or ''any enquiry, trial or other proceedings'', ''any persons'' and ''any such person'' clearly spells out that this Section is expressed in the widest possible terms and do not limit the discretion of the court in any law. However, the vary width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the court to take any of the aforementioned two steps in the fresh evidence to be obtained is essential to the just decision of the case.

Form the aforesaid decision it is luminously clear that a duty is cast on the court to scrutinise the situation to arrive at the conclusion whether summoning of a witness for any of the purpose is essential for just decision of the case. The court is required to be guided by sense of fair play and the command of justice. The primary duty of the court is to arrive at the truth by all lawful means. In the famous trial of Warren Hastings, Edmund Burke observed thus:

A Judge is not placed in the high situation merely as a passive instrument of the parties. He has duty of his own, independent of them and that duty is to investigate truth.

In this regard I may refer to the observation of Lumpkin J. in the cost of Epps vs. State which reads thus:

Counsel seek only for their clients'' success, but the Judge must watch that justice triumphs.

Judged on the anvil of the aforesaid principles it is clear as day that the learned trial Judge has not dealt with the situation in proper perspective and has casually, observed that the defence could summon those persons as its witnesses. There is no discussion with regard to the concept of essentialness of the evidence to arrive at the just decision or for revelation of the truth. As the order does not meet the requisite legal parameters the same becomes indefensible and is liable to be set aside and accordingly, I do so. The learned trial Judge would be well to consider the matter afresh keeping in view the law governing the field and the observations made above. The entire exercise shall be completed within a period of six weeks from today.

The revision application is accordingly allowed.

In the light of the aforesaid judgment even though the victim had not sought permission of the Court for assisting the Public Prosecutor but the request made by her in relation to a report given by the doctor who saw the victim after the incident and this report becomes a material for the purpose of doing complete justice between the parties to assist the Judge to appreciate the rival submissions, i.e., the contention of the complainant and the evidence collected by the prosecution as also the case of the defence, I do not find any reason to interfere with the order passed by the learned Additional Sessions Judge or the revisional Court. It is however, made clear that the petitioner will be entitled to cross-examine the witness on all material points including the admissibility of the report which he may produce.

With this observation the petition is disposed of.