Het Ram vs State and Another

H.R. Panwar, J.—This criminal revision u/s 397/401 Cr.P.C. is directed against the order dated 10.11.2004 passed by Additional Sessions Judge, Nohar District Hanumangarh (for short ''the trial court'' hereinafter) in Sessions Case No. 16/2002 whereby the trial court dismissed the application filed by accused petitioner u/s 311 Cr.P.C. (for short ''the Code'' hereinafter).

I have heard learned counsel for the parties. Perused the order impugned. The accused petitioner was put to trial for the offences u/s 450 and 376 IPC. The allegation against the petitioner was that on the intervening night of 1st and 2nd July, 2000, while the non petitioner No.2 was sleeping in her house, at about 2.00 A.M., the petitioner entered her house by house break and committed rape on her. During investigation, non petitioner No.2, the prosecutrix was medically examined by Dr. Sushila Nehra. Accused petitioner Het Ram was also examined by the Medical Board comprising of Dr. B.L. Nehra, J.P. Swami and A.K. Verma to ascertain as to whether he is potent and capable to sexual intercourse. The Medical Board has filed the report and opined that in normal circumstances, accused petitioner is not capable of sexual intercourse. The report is on record. The prosecution for the reasons best known to them did not produce Dr. Sushila Nehra who medically examined the prosecutrix and any of the doctor from the medical board to prove the report. In the circumstances, therefore, the petitioner moved an application u/s 311 Cr.P.C. for summoning the members of the medical board as also Dr. Sushila Nehra who examined the non petitioner No.2 which came to be rejected by the impugned order dated 10.11.2004 on the ground of delay.

Section 311 Cr.P.C. pertains to the power of the court to summon material witness, or examine person present and provides that any court may, at any stage of inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as 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. Thus, it is clear that Section 311 Cr.P.C. allows the Court to invoke its inherent powers at any stage, so long as the Court retains seisin of the criminal prohibition. Needless to say that trial of any court reaches to its finality when the order or judgment is pronounced and until then the Court has power to invoke the provisions of Section 311 Cr.P.C.

In Mohan Lal Shamji Soni Vs. Union of India & Ors., AIR 1991 (Supp. 1) SC 271, while interpreting Section 311 Cr.P.C. held as under:

The very usage of the words such as ''any court'', ''at any stage'' or ''of any enquiry, trial or other proceedings'', ''any person 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 way. However, the very 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 if the fresh evidence to be obtained is essential to the just decision of the case.

In Rajendra Prasad Vs. The Narcotic Cell Through its Officer in Charge, Delhi, the Hon''ble Apex Court held as under:

Lacuna in the prosecution case must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice or to find out and declare who among the parties performed better.

In State of Rajasthan Vs. Ishak Mohd., 1997(1) RCD 651 (Raj.), the name of prosecution witness Amar Chand was not mentioned in the list of witnesses due to inadvertence and on an application by the prosecution, he was sought to be examined as prosecution witness. And this Court allowed the said application.

In Mahipal Vs. State of Rajasthan, 2001 (2) R.Cr.D. 411 (Raj.), an application to summon the Tehsildar who recorded the statement of he deceased, was allowed by the trial court and a challenge to that order was made. In that case, while upholding the order of the trial court, it was held that the court has ample power to summon a witness.

Thus, a legal position curled out from the aforesaid decisions is that Section 311 Cr.RC. allows the Court to invoke its inherent powers at any stage, so long as the Court retains seisin of the criminal proceedings without qualifying any limitation or prohibition. Needless to say that the trial of any court reaches to its finality when the order or judgment is pronounced and till then Court has power to invoke the provisions of Section 311 Cr.P.C.

In this view of the matter, the order impugned cannot sustain and is liable to be set aside.

Consequently, the revision petition is allowed and it is directed that Dr. Sushila Nehra and any one member of the medical board be summoned to prove the medical report of the prosecutrix as well as of the accused petitioner. The process be given dasti to the accused petitioner who shall produce the witnesses without any further delay. The stay application also stands disposed of.